Further Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Hannay of Chiswick Excerpts

Wednesday 27th February 2019 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, it is a great pleasure to follow the noble Duke. He and I were twinned together in proposing an amendment to the EU withdrawal Act on the question of the “tablets of Moses” status of 29 March 2019. I do not expect that the noble and learned Lord who will wind up or his colleague on the Front Bench will admit that they would be in a much more comfortable position today if they had accepted that amendment, but that is a fact and I think it will be borne out within a few weeks.

There has been some shift this week in the course of action to which the Government once appeared to be committed—leaving the EU on 29 March with or without a deal and at any cost. This involved three reckless gambles, not one of which, let alone all three, is likely to be pulled off. Gamble number one is that the EU will blink and concede the changes to the Irish backstop in the withdrawal treaty called for in the Brady amendment which the Government supported and which, I remind noble Lords, involves the “replacement” of the treaty backstop. That is not going to happen, however many lashings of reassurance or clarification are ladled over the treaty, nor will a time limit to the backstop be conceded, nor will an open-sesame key to a unilateral UK exit from it be conceded.

Gamble number two is that the majority of 230 who voted in the Commons in January against the Prime Minister’s November deal—described, I may say, at that time, as the best deal conceivable—will be reversed, transformed by the philosopher’s stone of running down the clock into a vote in favour. That, too, seems unlikely to happen.

Gamble number three is that there is still enough parliamentary time before 29 March either to pass through all the stages and changes in domestic law that will be needed to ratify the deal, if it is approved by the Commons or, alternatively, to prepare the statute book for leaving without a deal. That clearly is simply no longer credible.

This House, on three occasions and with substantial majorities, voted against all three of those gambles, but the Government do not seem to pay much attention to that. They appear to be either unaware of it or impervious to it, and I have never heard a government spokesman actually mention those votes, which is rather sad. However, we do not need to repeat them today: we have said it; it is all in Hansard; it is on the record.

Meanwhile, unlikely as it is that the UK will in fact leave the European Union without a deal either on 29 March or on 30 June, the Government continue to divert billions of tax revenues to the fruitless task of lending credibility to that disastrous option. If press reports of the tariff schedules that we would apply in such an eventuality are to be believed, and they looked pretty convincing to me when I read them this morning, the Government are now also in the process of trying to boost the credibility of leaving without a deal, grievously damaging the jewel in the Brexit crown—an independent trade policy—because they are going to reveal that we, the UK, neither need nor desire to keep the large majority of our present trade protection. What an unrequited gift to those third countries with which we hope to negotiate. Why on earth should they make concessions to us in order to achieve access to our market, which we wish to give them anyway? That is another of the appalling errors that are made as the Government zig-zag around.

I ask the noble and learned Lord just one precise question. It seems that the Government wish to maintain the protection for beef, sheepmeat and dairy products, which we will then apply to trade from our EU partners. Where will those tariffs on EU exports of beef, sheepmeat and dairy products be levied on trade within the island of Ireland? Presumably it will be done on the border but I would like to hear the noble and learned Lord answer that.

It is surely time for all those three gambles to be taken off the table, and the sooner the Government do that, the better, both for them and for the country. Alas, the message from the Government—we have heard it again today from the noble Lord, Lord Callanan—is, as it was the last time we debated it and as it was the time before, “Jam yesterday, jam tomorrow and never jam today”. That message will not suffice next month and it should not even do so today.

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[Lord Farmer (Con)]

My Lords, I feel rather lonely in this debate. I think that I am fairly well known for being a passionate leaver—a beast in the Brexit herd. Right now, I feel like an isolated wildebeest surrounded by a pride of noble lions, possibly about to be torn limb from limb.

We in Parliament need to lift our heads and see that the mood in the country is one of wanting to get this over the line. People want Parliament to deliver on what 17.4 million voted for, and are profoundly disappointed by the continuous party politicking and thwarting of our departure. It would reflect well on both Houses—and especially on this one, where courtesy is the currency—if the polarising language and behaviour were softened. Currently, anyone who dares to suggest that leaving on WTO terms would not be terminal for our future prosperity is treated with deeply discourteous contempt. Yet that represents a position held by many outside this House, who resent the vitriol that is, by extension, also being poured on them.

If the Prime Minister, who is being attacked from all positions, can be magnanimous, then so can we. Yesterday she acknowledged that:

“For some honourable and right honourable Members, taking the United Kingdom out of the European Union is the culmination of a long and sincerely fought campaign. For others, leaving the EU goes against much that they have stood for and fought for with equal sincerity for just as long. But Parliament gave the choice to the people”.—[Official Report, Commons, 27/2/19; col. 168.]


Yesterday in the other place she also made it clear that there is not just real determination in both the EU and UK Government camps to enable us to leave with a deal, but also tangible work to operationalise the concept of alternative arrangements for the border in Ireland. This would not be taken seriously by both sides if it were really the unicorn some scornfully dismiss it as. Scornful dismissal ignores the fact that MPs coalesced around this as an acceptable plan that would avoid an indefinite Northern Ireland backstop. It also suggests a desire to block Brexit at all costs, as does the push for a second referendum.

Some say we have to give people another vote because no one in the country voted leave in order to be poorer and less secure, or to have fewer choices in the supermarket. I do not know how this can be said with such certainty, especially when there is hard evidence of what people did vote for. Lord Ashcroft’s polling on referendum day, which was in the same ballpark as findings from YouGov and the British Election Study, found that nearly half of leave voters, 49%, said the biggest single reason for wanting to leave the EU was, “the principle that decisions about the UK should be taken in the UK”. One-third said the main reason was that leaving, “offered the best chance for the UK to regain control over immigration and its own borders.” Just over one in eight said that remaining would mean having no choice “about how the EU expanded its membership or its powers in the years ahead”. Only 6% said their main reason was that, “when it comes to trade and the economy, the UK would benefit more from being outside the EU than from being part of it”. Yet when the Prime Minister’s Statement was repeated in this House yesterday, in the exchanges that followed much was said about trade and economics, as was said today—

[Lord Hannay of Chiswick]

The noble Lord has just read out a long list of the motivations of those who voted leave in June 2016, with percentages for those who were moved by those considerations. Will he say which one the Prime Minister’s deal fulfils?

[Lord Farmer]

Will the noble Lord repeat the question?

[Lord Hannay of Chiswick]

After he has read out the list of motivations of those who voted to leave, will he say which one, if any—I do not believe there are any—the Prime Minister’s deal actually fulfils?

[Lord Farmer]

The issue is sovereignty, which, as I said, was not mentioned yesterday and I do not think it has been mentioned today.

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[Lord Farmer]

I thank the noble Lord for his intervention. I am quoting from the House of Commons Library information on democratic deficit. It goes on to say—

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way. Is he by any chance aware that the biggest extension of qualified majority voting was conducted under Baroness Thatcher, with a view to establishing the single market? Why does he think it terribly undemocratic that decisions can be taken by a majority, when he has just told us that because 17 million people voted to leave we have to agree with them?

[Lord Farmer]

I believe that the system until now has been that each country has a veto, and, as I say, the qualified majority voting would now override that veto. I will carry on about the democratic deficit. The Library document goes on:

“The EU’s executive, the Commission, is unelected; the EP is too weak compared with the Council and Commission”,


and elections to it are not really European elections. Electorates vote on the basis of their support for domestic parties, and turnout is low. It has fallen by 30% since the first elections in 1979. The European Union,

“is too distant from voters”,

and,

“adopts policies that are not supported by a majority of EU citizens; the Court of Justice makes law rather than interpreting it; there is a lack of transparency in the Council’s adoption of legislation and in certain appointments (e.g. EU Commissioners); EU law has primacy over national law and constitutions”.

Unsurprisingly, the latest Eurobarometer survey shows that among the EU 28 countries only 42% tend to trust the EU versus 48% who do not, and the UK lags very far behind—53% of those in the UK do not tend to trust the EU versus 31% who do. This, like so many other things, could be blamed on Brexit, but even back in spring 2015 the United Kingdom had one of the lowest trust ratings of the EU’s institutions across the 28 nations. Only 27% tended to trust the European Commission, compared with the EU 28 average of 40%, and only 29% tended to trust the European Parliament, compared with the EU average of 43%.

National leaders are also painfully aware that the EU is in urgent need of reform. According to Tim Shipman’s book about the road to Brexit, All Out War, Merkel was consulted before David Cameron gave his Bloomberg speech pledging an in/out referendum in the Conservative 2015 election manifesto and she,

“urged him to ‘couch the speech in an argument about Europe having to change’”.

He fell in with this, taking,

“Merkel’s advice on how to pitch his call for reform”,

in that speech, by saying:

“I am not a British isolationist. I don’t just want a better deal for Britain, I want a better deal for Europe too”.


That completely sums up my own position.

As I said at the beginning of my speech, we have to lift our heads and see beyond the current entrenched positions. The painful reality and process of Brexit will or should exert enormous moral pressure on the European Union to reform so that continental citizens are better served—otherwise, we could be the first of many to leave. This is another reason why holding a second referendum would be so damaging. Instead of sending the message that democracy and sovereignty matter, and sowing unchokeable seeds of reform, we would instead be saying that they have to be traded off so that we can stay in thrall to a status quo that really serves only the elites who prop it up. In our own and countless other electorates, there would forever be that recognition that democracy ain’t what it seems to be.

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[Lord Keen of Elie]

Well done, you are entitled to refer to a fantasy; others are not. The consequence of that was that we were leaving consequent on the application of Article 50, which required at the level of international law that a certain notice period should be given.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord for giving way. He said that the Prime Minister was not responsible for putting no deal on the table. Did he read the Lancaster House speech, in which she said that no deal was better than a bad deal, and then repeated it several hundred times?

[Lord Keen of Elie]

The noble Lord’s observation is utterly irrelevant in this context. Let us be clear as to what the legislation provided. Ultimately, it provided that we would leave the EU on 29 March 2019. This Parliament determined that date—not the Prime Minister, not the Executive. Let us bear that in mind, shall we? It is in that context that you have to look at where we are going.

I come on to some of the observations of the noble Lord, Lord Newby. I am a little concerned for him, because he appeared to proceed on the basis that purgatory has its limits. I am terribly sorry to inform him that, as and when he arrives in purgatory, he may find that it is actually indefinite. He had better proceed with a degree of care in that context. He made an allusion to Mr Corbyn as a “schoolboy”. I do not want to take the allusion too far, but I will refer to one well-known fictional schoolboy called William, who said you cannot have a referendum if you do not know the question. We all know that. The point is that Mr Corbyn may be in favour of a referendum, but we have no idea what question he might or might not have in mind. Other members of his party have advanced questions, of course, but Mr Corbyn himself has not told us what his question is or is going to be. It appears that it is hidden in his allotment at present.

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[Lord Keen of Elie]

Yes, of course. Necessary legislation is the legislation necessary to have in place for exit day. I hope that clarifies that point for the noble Lord.

I turn to some of the observations of the noble Lord, Lord Kerr of Kinlochard, who among other things asked us to contemplate the Swiss approach to free movement. It was a very interesting observation. I ask him to contemplate the Swiss referendum to end free movement and the threats then faced by Switzerland from the EU as a consequence of having had that referendum. It was not the Swiss approach to free movement that succeeded.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord, because he is telling us a little Swiss story. Perhaps he would end by explaining how they had a second referendum.

[Lord Keen of Elie]

I see no need to do that in the circumstances, but many would regard that as an outrage in the context of the democratic traditions of the cantons of Switzerland.

I appreciate that the noble Lord, Lord Kerr of Kinlochard, is deeply attached to the idea of the EU and would not easily give it up. I think he may be an alumnus of the Glasgow Academy—its motto is “serva fidem”, or “keep the faith”. Certainly, he intends to do so, even in the face of the result of the referendum itself.

Turning to the observations of my noble friend Lord Hailsham, I regret to say that his proposition regarding the revocation of Article 50, for the purposes of contemplating a future and final referendum, is unworkable. The European Court of Justice made it clear in the Wightman decision that Article 50 could be revoked only in circumstances where the relevant member state intended to remain, without qualification, in the EU for the future, and could not be revoked in good faith for other purposes. Therefore, that proposal is not workable.

The noble Baroness, Lady Bull, observed that there might have been some deficit in the references to women’s rights and interests in our extensive debates on this matter. I will not challenge her on that, but I observe that the UK—not just the EU—has sought to lead the way in establishing clear, unequivocal grounds for gender equality and other equality issues. These are values we wish to see maintained after we leave the EU, and they are already enshrined in retained EU law, but we have that in mind.

My noble friend Lady Wheatcroft asked whether future trade deals would be scrutinised by Parliament. There are mechanisms already in place by which international treaties which the Executive propose to enter into may be the subject of scrutiny by Parliament, and they may be considered further in the context of Brexit. That remains the position.

The noble Lord, Lord Hannay, in his sunny way, referred to leaving on 29 March as a reckless gamble. With respect, it is not, and I share the confidence expressed by my noble friend Lord Howell that the Prime Minister’s deal—the withdrawal agreement—will be approved by the House of Commons when it comes to a vote on 12 March or earlier. Sharing that confidence, I do not consider that we are indulging in what was termed a reckless gamble. He also raised the question of where tariffs on beef and other agricultural products will be levied in Ireland. The answer is that there are many schemes by which that can be dealt with, without the erection of a hard border. As he is aware, various parties are looking at various schemes at present in that context.

Regarding the commitment to a referendum by the Labour Party, the noble Lord, Lord Liddle, observed that it took us to the issue of what the question would be, one which he regards as extremely complex, requiring careful consideration, and which he does not appear to regard as having been resolved by Mr Corbyn’s fellow shadow Cabinet members. That will be an issue.

The noble Lord, Lord Anderson of Ipswich, asked a series of questions. First, I agree that a three-month extension would not be sufficient to arrange and carry out a second referendum. No one would take issue with that, but then we do not propose a second referendum. Secondly, could we take part in the EU elections if we had a post-June extension? No, because we have already repealed the relevant domestic legislation for the purposes of having that election. Thirdly, the noble Lord’s point that the EU Parliament could sit without the UK having had an election to the European Parliament is correct, because there are circumstances in which the Parliament will sit when one or more member states has declined to carry out the relevant electoral process. Clearly, as he indicated, the EU Parliament could not be held to ransom in those circumstances. The Parliament and its other institutions would continue to function, albeit without the direct representations of UK MEPs in such circumstances.

Finally, I thank all noble Lords for their contributions to the debate—