Brexit: Parliamentary Approval of the Outcome of Negotiations with the European Union

Lord Hannay of Chiswick Excerpts

Monday 28th January 2019 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Whitty. We sit together on the EU Committee and often agree, especially on matters of history and technical reality, if perhaps not today on his latest idea.

I spoke on 9 January about the need to improve the withdrawal agreement. On the assumption that such an improvement would be negotiated, I also talked of the opportunities that we can garner post Brexit. Today I return to the former theme and will also say something about how we should conduct ourselves in the unlikely event that, for whatever reason, improvement proves impossible and we need to proceed with no deal.

The other place, as has been said, voted decisively against the present withdrawal agreement; tomorrow’s further votes are likely to include one requiring the Government to re-enter negotiations and take out or severely limit the life of the backstop. I believe that this can and should be done. We have far more power now than we will have once the withdrawal agreement is accepted. This is partly because acceptance requires only a majority vote in the European Union, whereas the future relationship agreement requires unanimity and votes in Parliaments across Europe. Also, as the Attorney-General has confirmed, if the present withdrawal agreement were accepted, there would be no legal way that the UK could ever unilaterally exit the backstop. My noble friend Lord Bridges said in an earlier debate that no Government should ever have agreed to that concept and I am afraid that I have to agree with him. Vassalage is a colourful term but, to my mind, it would accurately reflect our status if we accepted the current agreement as it is.

Furthermore, the backstop is illogical. We are told that it is designed to prevent a hard border between Northern Ireland and the Republic. Yet, as matters stand, it is the main factor preventing the withdrawal agreement being accepted. Recently, the EU has belatedly acknowledged what has been apparent all along; namely, that if there is no withdrawal agreement there will be a hard border in Ireland at the EU’s insistence. The EU is apparently insisting on the backstop to prevent a hard border in Ireland, while the main factor threatening a hard border is the inclusion of the backstop in the withdrawal agreement. It is a mystery to me why the Government have not been more vociferous in pointing this out.

The major advocates of the backstop are the Commission, the French and the Irish.

[Lord Hannay of Chiswick (CB)]

Perhaps the noble Baroness might think again before saying what she said about tariffs: that tariffs being charged on the border between the Republic of Ireland and Northern Ireland in the event of no deal would be because the EU orders it. That is not true: it would be because the World Trade Organization rules require it.

[Baroness Neville-Rolfe]

I will come on to talk about tariffs in the event of no deal. Obviously, I was referring to the point that has been made about the apparent change in the Irish position in recent days, which others have already referred to. My understanding is—

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I had been going to start my remarks by saying, “Here we go again”—but unfortunately the noble Lord, Lord Cormack, got there before me. There is indeed quite a lot that is both tedious and repetitive about the string of debates that this House and the other place have been holding on Brexit. I hope that I will not be thought too disobliging if I say that today’s debate seems to show some traces of metal fatigue. However, the debates and the votes we register are necessary because only Parliament can ensure that the Government do not, perhaps inadvertently, take this country on a course that could inflict considerable loss and suffering on its citizens.

Two weeks ago, by a majority of 169, this House categorically registered that leaving without a deal needed to be rejected. I would like the Government to say—since the noble Baroness the Leader of the House did not say a word about it when she opened the debate —what account they took of that vote when they started to shape up what is described with some irony as plan B but is in reality plan A, rejected by large majorities, in flimsy disguise. I listened carefully to the Leader’s speech and she did not manage to mention plan B at all. Like TS Eliot’s Macavity the Mystery Cat, it has just disappeared. Where has it gone? I do not know—but we perhaps need to know. I fear that the answer to the question of how much account the Government have taken of your Lordships’ majority of 169 is, “Not a lot”.

It is important that the Government face up to reality and admit what the consequences of leaving without a deal would be. The noble Baroness, Lady Neville-Rolfe, referred to this and I will refer to it, too. If we leave without a deal, on 30 March we will be required, not by a diktat from Brussels or Dublin but by WTO rules, to apply tariffs on all our imports from the European Union—and EU countries will be required to apply tariffs on all their imports from us. That would apply on the border between the Republic of Ireland and Northern Ireland as elsewhere. Alternatively, there is one way out, which is that we apply zero tariffs to all our imports worldwide—which would remove all protection from our businesses and our farmers.

It would be helpful if the Government would say which of those choices they would make. It is rather important for businessmen who are already fulfilling contracts that involve trade in these goods. They might like to know whether the tariff will be 10%, 20%, 0% or what. That quandary was admitted by the noble Baroness, Lady Fairhead, at Second Reading of the Trade Bill on 11 September. It was also implicit in what the noble Baroness the Leader of the House said in reply to a question of mine on 21 January. Is that the Government’s view—I would very much like to hear the answer in the winding-up speech by the noble Lord, Lord Callanan—or are we planning to start our life as an independent member of the WTO by flouting its most fundamental rule: the most favoured nation rule? If that is the case, there are even more compelling reasons to rule out leaving without a deal.

It really is no good the Government repeating, as they do frequently, that they cannot single-handedly rule out leaving without a deal. That is entirely correct, of course, but entirely insufficient. The reason is that they could quite easily say, today at the Dispatch Box, that they would do everything within their power to avoid leaving without a deal, and we would all be very happy if they said that. We would recognise that it would require the co-operation of the other member states, but it would be a good start. Frankly, if they still believe that it gives us leverage to go on playing with the trigger, they are in for another bad surprise.

Then there is that date of 29 March, which the Government insist must remain as if it were written on one of the tablets brought down by Moses from Mount Sinai. Do they not understand by now that there is not the slightest chance of being able to meet that deadline? Whatever course of action is taken, even in the eventual case of the Prime Minister’s deal being approved, there still is not time to do it and to pass all the necessary legislation under the withdrawal treaty and the political declaration. Would it not be more sensible to recognise that now and initiate discussion with the European Union about prolongation? Several views have been expressed on its duration and its motivation, and surely that would be a much more sensible course to take. No doubt the Government will be forced to get there eventually, but how much better to do it now and not to inflict more uncertainty and damage on our economy in the weeks ahead.

I hope that a clear message on these two points will go out from this House today. That is why I will support the Motion in the name of the noble Baroness, Lady Smith of Basildon. I looked at it again just now and really find it hard to believe that anybody could be opposed to the second part of the Motion—although I then listened to my noble and learned friend Lord Brown, who managed to find some reason to do so, which I am afraid I did not follow very carefully—while the first is just simple common sense.

Brexit: Support for Remaining in the EU

Lord Hannay of Chiswick Excerpts

Wednesday 16th January 2019 Lords Chamber

[Lord Callanan]

My Lords, a no-deal Brexit is on the cards because Parliament has legislated for our leaving on 29 March, which accords with how the majority of people in Wales voted. The best way to prevent no deal is to have a deal. There is a deal on the table.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister recognise that in the situation we are now in, there is no realistic possibility of settling this matter before 29 March other than by a default departure, which this House categorically rejected by a majority of 169? Could he not take a slightly softer tone about the need for a prolongation, which is now quite obvious to everyone?

[Lord Callanan]

I thank the noble Lord for his comments but it is not a question of taking a softer or harder tone. I was merely quoting what the law passed by this Parliament, and the Article 50 process, says: that we will leave on 29 March. If that were to change, it would need to change by statute.

Brexit: Withdrawal Agreement and Political Declaration

Lord Hannay of Chiswick Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I am pleased to follow the noble Lord, Lord Teverson, and I agree with much of what he said. This is obviously a crucial moment for the outcome of this negotiation. It matters a lot to this country, and it matters a lot to this House. The delay in December was neither justified nor wise, compressing as it did a significant number of consequential decisions into a short space of time. But, alas, procrastination has marked the Government’s handling of this negotiation from beginning to end.

It is not for this House to determine the outcome. That is for the other place. But it is necessary that we should express a view—we should have our say. Merely taking note of a deeply flawed and deficient deal which the Government propose to this House would be hardly fitting.

The Prime Minister tells us that this is the best deal we will get. She may be right, within the parameters of those infamous red lines, which she imposed without any authority from the Cabinet, from Parliament or from the 2016 referendum. If you exclude continued membership of the customs union and single market from the outset, and you continue to demonise the European Court of Justice, that is what you get—and a pretty poor thing it is. Moreover, you get the backstop. I have now had two letters on that from the Leader of the House, for which I am most grateful, which seek to reply to my question as to whether anything that has been said since the Prime Minister reached agreement on the deal has actually caused the Attorney-General’s advice—that we cannot exit from the backstop unilaterally—to be varied.

The key phrases are now set out in the exchange of letters and the Attorney-General’s advice. The Juncker-Tusk letter says that,

“we are not in a position to agree to anything that changes or is inconsistent with the Withdrawal Agreement”.

The Attorney-General says that they—that is, all the things that have happened since December,

“do not alter the fundamental meanings of”,

the withdrawal agreement provisions,

“as I advised them to be on 13 November”.

That is pretty clear, you would think: it is a rather long way of saying that nothing has changed, but that is what it is.

The idea that exiting without any deal at all should be an even faintly acceptable outcome can surely not survive a reading of the economic analysis provided by the Government, the Bank of England and the NIESR. Finally, the Government have realised—as they did not when they first started to trot out the irresponsible slogan, “No deal is better than a bad deal”—that it is pretty disastrous. It must therefore be right for both Houses to state their categorical rejection of that outcome. It would be right, too, for the Government to state now that they will honour and act on such a rejection, and not play around with the false oxymoron of a “managed no-deal exit”.

The hard fact is that, if you look through the copious documentation we have now received, you will see not a single area of policy where what is now on offer can be said with any confidence to be better than what we have as a member. For prosperity, security and our global influence, we are clearly better off as a member. In most areas, the outcome is clearly negative. Can anyone seriously doubt that we will be less influential in Washington and Brussels, or in Beijing and Delhi, or that we will find ourselves with a much lower trepidation index—the measurement that determines whether other countries hesitate to kick you on the shins or to decline your representations? That is why I will not hesitate to vote for the Motion in the name of the noble Baroness, Lady Smith of Basildon, which is a clear but respectful message to the other place.

What happens if the other place votes tomorrow to reject the deal? The case for then submitting it to the electorate is, in my view, compelling. I have no liking for referendums, but it was the Prime Minister of the day, David Cameron, who forced that decision on us when he decided to play Russian roulette with one of our major national assets. I do not believe we can escape that trap without another public vote, particularly now that so much more is known about the consequences of leaving than was known in 2016.

Will such a vote be divisive? Of course it will. However, I believe that the outcome of such a vote, whichever way it goes, will be more likely to achieve closure than the agonisingly protracted negotiating agenda set out in the Prime Minister’s deal.

Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Lord Hannay of Chiswick Excerpts

Wednesday 17th October 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, it is of course pure coincidence that we should be debating the excellent report by the sub-committee of the noble Baroness, Lady Kennedy, on the first day of what is likely to prove a complex and protracted endgame in the Brexit negotiations. But it is, I would suggest, entirely appropriate because, as other speakers have said, this is a crucial issue and is seen by all those concerned as unresolved as yet.

We have to look at both the implications of dispute settlement procedures for the transitional period, if we do leave the EU next March, and their implications for any UK-EU relationship in the longer term—a new relationship thereafter. I congratulate the noble Baroness on a report that sheds a good deal of light on this issue—which, I have to say, is more than the Government’s contributions so far have done, since they have consisted mostly of obfuscation and evasion. I congratulate her, too, on the clear and forceful way in which she introduced the report.

The Government contribution has been not only evasive but downright misleading. As recently as a month ago, the Prime Minister was still saying flatly that the European Court of Justice’s role in the UK would cease on 29 March 2019—although she must be perfectly well aware that she has been negotiating agreements that do not bear out that statement. After all, the deal struck on withdrawal last December and what was said then about the European Court of Justice’s role in dealing with the cases of European citizens, and the transitional period arrangement reached in March, both contain clear provisions for the ECJ to have a continuing role in the UK beyond exit date. I hope, therefore, that we shall have a little more candour from the Minister when he replies to the debate. I also hope that he will not retire behind a smokescreen in which the word “direct” is continually attached to jurisdiction, as if that were somehow an excuse for not saying anything about what is really going to happen.

I would like the Minister, if he can, to clear up the facts by dealing with the following three questions. First, is it not the case that the European Court of Justice will continue to have a role in this country in resolving disputes over EU citizens living and working here, beyond the exit date and beyond the date of the end of the transitional period? Eight years takes us a long way beyond that.

Secondly, is it not also the case that the European Court of Justice will continue to operate in this country, as now, on disputes right across the board for the duration of that transitional period, however long it may prove to be? That will be in a period when we no longer have any representation on any of the EU courts, but my understanding is that that point has been conceded.

Thirdly, is it not therefore inevitable that, if a deal is struck, the EU withdrawal implementation Bill will have to amend the provisions of the European Union (Withdrawal) Act 2018 terminating the ECJ’s jurisdiction on exit day? The only circumstances in which that amendment will not be needed, as far as I can see, is if there is no deal, which the Government say is not their preferred option. Have I got those three points right? It would be helpful to know.

So much for the past. As for the future relationship, no one who has mastered the complexities of the Chequers plan—not the most popular of documents, I know, but I have attempted to do so—and not just its provisions on trade but those on internal security and other matters can doubt that some elaborate and fireproof dispute settlement procedures will be required as an integral part of any such plan. No one who has anything to do with the European Union can doubt that it will insist on the European Court of Justice having a clear and important role in any such procedures.

If we accept the inevitability of those two points, I really do not see how the Government are right to avoid describing in more detail how those can be reconciled. I think I know why they do not do it, and I can answer the question—a little unfairly, perhaps—on behalf of the Minister: it is because they do not want to admit to their own supporters that the European Court of Justice will have a dispute settlement role here far into the foreseeable future. It would surely make more sense if the Government were to think a little more constructively about ways of handling this problem and the sensitive issues it raises, rather than pretending that the problem does not exist, which is very much their approach.

I regret that the Government took such a negative view about the idea of using the precedent of the EFTA Court in some way or another. I notice that the noble Lord, Lord Thomas, did not much like it either. I do not think that anybody is suggesting that it should be applied precisely, but the point about the EFTA Court is that it meets three criteria. One is that Britain would be represented on it. The second is that the European Court of Justice’s role is assured. The third is that its rulings are not directly applicable, although of course any party that rejected one would see serious negative consequences on the overall relationship. I think that they were a bit rapid in dismissing that. Even if it is probably unwise to talk about the EFTA court as if it itself was the answer, does it not provide a framework which is much closer to being the answer than the rather complex arbitration procedures put forward by the Government, which I frankly do not believe that the European Union will ever accept? I would like the Minister to address that, and not just in the terms in which the Government have addressed it in their response to the report.

When the history of the Brexit negotiations comes to be written, I do not believe that commentators will be particularly kind about the Prime Minister’s red line on the European Court of Justice. I think they are likely to regard it as totally unrealistic and incompatible with the wider objectives for a new relationship which the Government are in fact pursuing, a fact that I welcome. Moreover, they could well marvel at how much effort is being put into assailing the jurisdiction of a court whose rulings, over the 45 years of our membership, as the noble Lord, Lord Thomas, made clear, have far more often been beneficial to the UK than detrimental to it. However, it is not too late to change track. That red line about the European Court of Justice has been driven across multiple times, as I have tried to suggest, so why not now start to think constructively about dispute settlement, recognise a role for the ECJ in any such procedures, get to the negotiating table and get that settled?

Brexit: Negotiations and No-deal Contingency Planning

Lord Hannay of Chiswick Excerpts

Tuesday 4th September 2018 Lords Chamber

[Lord Callanan]

I refer the noble Lord to the answer I gave earlier. The option of EEA membership is not straightforward. It is not uncomplicated and it does not present a solution to many of the difficulties that were addressed in the referendum campaign.

[Lord Hannay of Chiswick (CB)]

Will the Minister go back to the issue of citizens’ rights? If I understand it rightly, he has replied to various questions by saying that the Government will make up their mind on the situation for European citizens here in a no-deal situation when that arose. Are the Government not giving any consideration to whether it might not be both humane and valuable for our negotiating position if they were to make it clear now, unilaterally, that they will apply the provisions in the December agreement, come what may, deal or no deal? Surely that would be better, and it would also be a better way of protecting the interests of our citizens in other member states.

[Lord Callanan]

The Prime Minister has made it clear on a number of occasions that EU citizens who have chosen to make their homes in the UK are welcome to stay. We have protected their rights, and the rights of British citizens abroad in the draft withdrawal agreement. If there is no withdrawal agreement, we will want to move swiftly to guarantee the rights of those people. We may not want to do it in exactly the same way as set out in the withdrawal agreement at the moment, but we would want to guarantee their rights and emphasise the fact that they have made their home here and are welcome to stay. The Prime Minister has made that very clear.

Brexit: Preparations and Negotiations

Lord Hannay of Chiswick Excerpts

Monday 23rd July 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

Can the Minister explain how this exclusion of the European Court of Justice will apply to the operation of the European arrest warrant, which involves individuals and not Governments?

[Lord Callanan]

The European arrest warrant is of course part of the security partnership that we seek to agree. It has some challenges at the moment, given the constitutional bars that one or two member states have, but we continue to discuss with the EU how we can take that proposal forward.

In a limited number of areas, we would choose to adopt a common rulebook to ensure the free flow of goods. That body of law is relatively stable, and when there are any changes, Parliament would have to approve them.

We are taking a principled and practical approach. Yes, we have shown flexibility as we strive for a good deal for both the UK and EU. As we demonstrate our ambition for a close partnership through the White Paper, it is worth emphasising two key principles that we share. The first is that Article 50 dictates that a withdrawal agreement must come alongside a framework for the future agreement. The second, flowing from that, is that nothing is agreed until everything is agreed.

We will not sign away our negotiating leverage or spend taxpayers’ money without anything in return. In December we agreed that the financial settlement would sit alongside a framework for a deep and mutually beneficial future partnership, but if either side should fail to meet their commitments—and I should say that we certainly do not expect that to be the case—it would have consequences for the package as a whole that we agree.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, speaking at number 23 in this debate, I did not think that I would succeed the first person to speak on behalf of the Government’s White Paper, but so it has been. I am afraid to say that I will make one point in common with the noble Baroness, Lady Nicholson, and pay tribute to those who put together the 98 pages. It is the first comprehensive explanation of the Government’s negotiating position that we have had in the two years since the referendum. However, apart from that, I am afraid that I will depart rather widely from what the noble Baroness said.

The White Paper, which had such a troubled birth and has had a pretty troubled life in its short three weeks, is not under any circumstances a blueprint for a deal, and anyone who believes that it is is doomed to be disappointed. That is all the more so given that there are so many holes in this White Paper, which other speakers before me have mentioned—as many as in the ordinary piece of Swiss cheese—and so many inbuilt contradictions, some of them, of course, forced on the Government by their own capitulation to the European Research Group, that most Orwellian of brand names. That is really what leads me to my overall conclusion about the White Paper, which is: too little, too late.

It is too late because it should have appeared nearly two years ago before the Prime Minister drew all those red lines, without any Cabinet or parliamentary authority, on the customs union, the single market and the European Court of Justice, when she spoke in October 2016. If it was not made clear then, it should have been done before triggering the Article 50 letter, with its two-year cut-off. If it was not done then, it should have been produced at the time that political agreement was reached on the withdrawal arrangements in December 2017. If it was not done then, it should have been done when the rather inadequate transitional period was agreed in March this year. That is quite a list of chances missed.

If that is too late, it is too little because of all the holes and contradictions. I shall mention just a few, and I would welcome a response from the Minister when he comes to wind up this debate. The first is the Irish backstop. We settled for something. We agreed to it in December 2017. Now all we can say is that we do not agree and will never agree with the legal language that the Commission has produced. Okay, so what can we agree to? What legal language are we prepared to accept? Legal language there will have to be; if not, there will not be a deal.

The second is the free movement of people. For the first time, the White Paper speaks about a framework for mobility to be negotiated with the EU 27. When I spoke about this at the time of the Statement, the Minister rattled off a number of references where I would find all I needed. Alas, no, there is not a word about what this mobility partnership means. This framework for mobility remains a great mystery. We have no White Paper on immigration and no post-Brexit immigration Bill. We have nothing. The negotiators—ours and theirs—do not have a clue from reading those 98 pages.

The third is dispute settlement. A hugely complex and cumbersome procedure is put forward which might conceivably handle disputes between Governments but is quite inadequate and unfit to deal with disputes about the rights of individuals, most importantly on the European arrest warrant, which is a crucial part of any security arrangements that we may reach. What I do not quite understand is why the Government have never paid any attention to the possibility of borrowing the example of the EFTA court, which would provide a British judge and which reaches decisions which are not legally binding and immediately applicable. I think that they could have done better than this cat’s cradle.

The fourth is the service industries, which form 80% of our economy and are hugely competitive across Europe and the world. There is nothing in the White Paper that says what will be done for them. They are simply being hung out to dry, with no solutions proposed.

The fifth is the backstop, or what is called the lock for Parliament on changes in the EU rulebook, in which we are told that Parliament will be able to reject them. That, frankly, is a sham. Using that would bring the whole edifice tumbling down and, as the Swiss discovered when they started to monkey about with free movement, it does not take long to come down.

Last, but not least, I come to the customs facilitation arrangement, an extraordinarily ambitious and untried system. Is it even consistent with our WTO obligations, where exporters on the whole expect to know what rate they will trade in when they send their exports? Is it even faintly possible that it can be introduced in the rather short timescale of the 20-month transitional agreement?

We are now approaching the endgame for these Brexit negotiations. It is no good saying, as has the leader of the other place, that this White Paper is our final word. It is no good saying, as has the Prime Minister, that the White Paper is,

“a set of outcomes which are non-negotiable”.

That is a recipe for the worst possible outcome: no deal. There would have to be consequences, and they would be pretty dire.

As many speakers before me have said, we must recognise that there will have to be further compromises—I agree, compromises by both parties to the negotiations. To pretend otherwise is to bring up more trouble in the autumn. I hope that the lesson will have been learned. Otherwise, the negotiations will continue—I say this with some sadness—to be the most ill prepared and ill conducted in this long saga of our relationship with the European Union. The historians who write the story of this will not be kind to those who take us over the cliff.

--- Later in debate ---

[Baroness Falkner of Margravine]

The noble Lord was of course a member of that committee and he knows the system well. What he loses sight of is the timing. The discussions are happening now. As far as I know, and I am sure the noble Lord knows, we are not at the table—this is a point I made early on.

[Lord Hannay of Chiswick]

My Lords—

[Baroness Falkner of Margravine]

If I could conclude answering one intervention, I may be disposed to take another, but I am limited in my time and will perhaps wish to continue this bilaterally. Let me deal with the point made by the noble Lord, Lord Kerr.

[Lord Hannay of Chiswick]

My Lords—

[Baroness Falkner of Margravine]

No, I am sorry. I am not going to give way until I have dealt with the point made by the noble Lord.

The noble Lord’s point was that if we were full members sitting at the table we would negotiate not to give away our rebate—of course, because there is unanimity. The essence of what I am saying is that the EU is making these decisions now while we are not at the table, because the decision deals with the period 2021 to 2028. We have absented ourselves because the withdrawal agreement suggests that we will leave in March 2019. His hope that we can somehow exercise a veto while we are not at the table seems somewhat futile.

I need to make progress so I will not continue on this point, but rather deal with those who believe that a Norwegian option is the answer. I have indicated to the House that I will not give way and I see the Government Whip urging me to come to my concluding remarks, so I will continue. Several noble Lords believe, as in fact the EU negotiators told us last week, that the only other option would be to remain in the single market, through membership of the EEA—in other words, the Norway option. We are told that this would give us access to everything we want. Yes, it might do so, but returning to the Norway option would involve us giving up the rebate, as we would no longer be a member of the EU, merely a member of the EEA; hence, no rebate. The resulting maths goes like this. In 2016 we paid £123 per head. Norway paid roughly £135 per head. The general belief is that Norway does not receive a great deal in receipts, as it participates in fewer programmes, so it actually pays more than we are currently paying. So those who think that the EEA is a good option need to think about how they would sell that to the people. It would be rather difficult to say that paying a bit more would result in a good deal.

I turn, in concluding, to the issue of the UK withholding the exit fee of £39 billion. My committee conducted an inquiry into Brexit and the EU budget in March 2017. We came to the view that while the UK had a moral and political obligation if it wanted a good deal, there was no jurisdiction in which the EU could challenge the UK in a court case. The negotiation on a figure was just that—a negotiation. In light of that, if the rest of the negotiation fails, I would find it odd that we would stick to just one element of it: nothing is agreed until everything is agreed. I suggest that the Government abandon this White Paper and pursue the creativity that the Foreign Secretary has called for today: either a Canada-plus-plus or another option that delivers an association agreement with enhancements as we leave.

EU Exit: Future Relationship White Paper

Lord Hannay of Chiswick Excerpts

Thursday 12th July 2018 Lords Chamber

[Lord Callanan]

I thank my noble friend for his comments. I never had any intention of resigning, despite the optimistic tone in the Twitter feed of the noble Baroness, Lady Ludford, which somebody pointed out to me. It was a great amusement to wake up on Monday morning and find the number of people—including the noble Lord, Lord Adonis, the noble Baroness and others—who had been speculating on my demise. Of course, these are difficult times. There were always going to be difficult and tricky negotiations and I have always said that we need to try to come up with a solution which everybody in the country can support. That will be a challenge but we will do our best, because we have to move forward in a spirit of unity and not division.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister perhaps enlighten the House on whether the customs arrangement proposed will be in full conformity with World Trade Organization rules, which normally lay down that when a third country sends goods to somewhere such as the UK, it knows what tariff rate it will be faced with? That would be the UK tariff rate but apparently, under certain circumstances, it would be a different tariff rate. Does that conform to the WTO?

My second question is about the migration partnership. The Statement makes it clear that this will fall within the ambit of the negotiations with the EU 27, but what on earth are the negotiations going to be about since the White Paper says nothing about the migration partnership? When the Minister’s right honourable friend arrives in Brussels next week, what is he to say when asked what we are putting in place on freedom of movement? Finally, I notice that the Statement states categorically that the Government are not going to spend taxpayers’ money on nothing but, if they get their way and there is a deal, they will have spent millions in taxpayers’ money on preparing for nothing.

[Lord Callanan]

I do not know if the noble Lord has a copy of the White Paper but, if he looks on pages 32, 33 and 34, he will see a substantial amount on what we see as the mobility partnership, the ending of freedom of movement, et cetera. Maybe he would like to look at those pages. Of course anything we seek to negotiate will conform with WTO rules. We will be an independent member of the WTO. We look forward to resuming our seat and we will be a global advocate for free trade, in conformity with WTO rules.

European Union (Withdrawal) Bill

Lord Hannay of Chiswick Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Lamont of Lerwick]

That of course is what Article 50 was about but it is also true that, during the election and during the referendum campaign, many commitments were made over and over again that we would honour the result of the referendum.

The most objectionable part of the original amendment, Grieve mark I, was the use of the word “direction”. To my mind, it obviously was impractical for Parliament to direct the Government in every aspect of the negotiation if there were a situation in which there was no deal. It is one thing for Parliament to direct our own Government as to what they can accept or propose, but what it has no control over is what the other side will accept. Therefore, by saying that Parliament would direct the negotiations, we would be forcing the negotiators to go to the other side with a list of things that we knew it would be able to accept, and, as I say, all flexibility would be removed from the negotiations.

Then we have the question: if Parliament is going to be directed, how will it be directed? There are 650 different Members of Parliament—

[Lord Hannay of Chiswick (CB)]

My Lords—

[Lord Lamont of Lerwick]

I would like to make a little progress, if I may. How would the will of Parliament be determined? It would be determined through political parties in the normal way, put down in the form of Motions in the House of Commons. I put it to the House that, really, this long and convoluted procedure would have little difference from the way Parliament would behave without this amendment being put in place at all.

Subject to the clarification from the Leader of the House about the Motion being justiciable and the reasons why we want it to be unamendable, I strongly support the amendment tabled by the Government and urge the House to reject that put forward by my noble friend Lord Hailsham.

--- Later in debate ---

[Lord Pearson of Rannoch (UKIP)]

My Lords, I remind the noble Viscount, Lord Hailsham, and those noble Lords who, in reality, want us to stay in the European Union, that a referendum in 1975 confirmed our membership of the then European Community and that our recent referendum decided we should leave it. A Written Answer to me on 9 January this year revealed that some 20,000 pieces of EU law have been imposed on this country since 1973 and there was nothing the Commons or your Lordships’ House could do to stop it. The noble Lord, Lord Lamont, referred to this. How do those who accepted the result of that first referendum and approved all those laws from the anti-democratic EU law-making system now think that Parliament should decide the manner of our going?

I wonder how many of our people understand how anti-democratic that system is and whether the result may have been even more in favour of leaving if they had known it. Indeed, I am tempted to wonder how many of your Lordships’ understand it. To test that knowledge, I ask noble Lords who know what COREPER is and what it does to raise their hands—former Eurocrats excluded. Not many—in fact hardly any. I will explain what it does. It is our most—

[Lord Hannay of Chiswick]

I merely wish to ask the noble Lord whether he is asking the House to play a game of Trivial Pursuit.

[Lord Pearson of Rannoch]

My Lords, the pursuit will be far from trivial when the answer is seen.

It is our most significant law-making body. After all EU legislation has been proposed, in secret, by the unelected Commission, it is then negotiated, still in secret, in the Committee of Permanent Representatives, or COREPER. Now most of your Lordships know what it is. When it has finished, the legislation goes to the Council of Ministers, where the United Kingdom has been outvoted on every single piece of legislation that we have opposed in the past 10 years. That is the system which has resulted in those 20,000 laws being passed, with our Parliament wholly irrelevant.

I look forward to an explanation from the noble Viscount, Lord Hailsham, or one of his noble remainer friends, as to why they want to go on with it and how they have the nerve to pray Parliament in aid of their desire to do so.

--- Later in debate ---

[Lord Callanan]

My Lords, we come again to the issue of exit day. Both Houses have debated this issue extensively during the Bill’s passage. There is therefore little new to say about how exit day operates in the Bill. It is an appointed day on which a significant number of the key provisions of the Bill have their material effect. As that provision entered this place, it followed international law clearly and precisely. It was in line with the precise date and time at which we would leave the EU; it was not a date that the Government picked arbitrarily. There was also a mechanism to change the date in the Bill if that were so agreed, with specific reference to the circumstances in which that international law mechanism would be activated.

This House chose to send for reconsideration by the House of Commons amendments that undid the careful consideration and multiple amendments that its Members had provided. I understand that many here wanted to ensure that there was as much flexibility as possible in the Bill but I repeat that it is international law, not domestic law, that determines when we leave the EU. I am afraid that I am not surprised that the other place has rejected our amendments. I hope noble Lords accept that the Commons has had the chance to think again, and has come to the same conclusion that it did previously. I suspect that many knew what the Government’s position would be before they saw it on the Order Paper, but I hope that having framed it in this way it is clear why I am asking the House not to insist on its amendments today. I hope the House is content that it has played its revising role on this point by asking the other place to think again but, having done so, will now let the matter rest. I beg to move.

[Lord Hannay of Chiswick]

My Lords, I was one of those who proposed the amendment that has not found pleasure in the other place. I recognise that, as the Minister has said, the date of our departure from the EU will actually be determined not by what we put into the Bill but by international law—namely, Article 50. If under Article 50 it is decided that a longer period than the two years is needed, no doubt that will be agreed by common accord with Brussels, and the Minister will be standing at the Dispatch Box telling us that after all 29 March is not set in stone. At that moment, I will try not to remind him of the various times at earlier stages of the Bill when he said it was set in stone.

My own view was that the date has no place in the Bill, and that was actually the view of the Government at the outset. However, they changed their minds as part of a political manoeuvre. As the Minister has said, there is some flexibility built into what is known as the Letwin formula, which is the one that the House of Commons has reverted to, and I do not think we should trouble the scorers any more on this matter.

[Lord Callanan]

I thank the noble Lord, Lord Kerr, for his remarks.

Brexit Transition: European Parliament Membership

Lord Hannay of Chiswick Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Callanan]

The details of the membership of that committee are still to be resolved.

[Lord Hannay of Chiswick (CB)]

My Lords, will the Minister perhaps go a little beyond his very selective quotation from Article 50, because he invariably takes out the reference in it to the possibility of prolonging the period of two years? I know that is not government policy, but the Government appear to be doing contingency planning on a lot of eventualities. What contingency planning are they doing about the membership of the European Parliament, if a decision were taken by unanimity to extend the period of two years?

[Lord Callanan]

We are not doing any contingency planning on it because we are not going to apply for an extension. An extension is not going to be granted because, as I have said on at least three different occasions today, we are leaving on 30 March 2019.

European Union (Withdrawal) Bill

Lord Hannay of Chiswick Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I share in full measure the hopes and concerns articulated today by so many of your Lordships. That said, if the amendment is put to the vote, I shall not feel able to support it. My approach to this amendment, as to earlier amendments to the Bill, has been essentially that it is fine to tell the Government what they must do once they have achieved what they regard as the best available deal, but it is not fine to seek to impose on the Government requirements as to precisely what that deal must be or how to achieve it. In other words, we can tell the Government what rights Parliament or, as I promoted, the public should have on a further referendum as to what we can do and should do, by way of approving or rejecting the proposed final deal—or, indeed, a decision to exit with no deal—but we should not seek to bind or inhibit the Government in reaching a deal and so risk weakening their negotiating position.

The Bill is not for that purpose but to keep our statute book intact. I urge your Lordships, rather than indulge all our hopes and wishes in this area, to think about whether we ought to put these explicit requirements into this legislation.

[Lord Hannay of Chiswick (CB)]

My Lords, I wonder whether the noble and learned Lord is reading the same amendment as me. The one I am reading, which was so well introduced by the right reverend Prelate, states:

“Nothing in this Act shall prevent the United Kingdom from … replicating”,


or “continuing to participate”. It does not say that we have to do it. It just says that nothing shall prevent our doing it. Perhaps I am reading a different amendment from the noble and learned Lord.

[Lord Brown of Eaton-under-Heywood]

Funnily enough, when I first read the amendment, I took the same point from it that my noble friend has taken. However, it seemed that it could not be so because it simply would not make sense to move an amendment that is not intended to have any effect on the Government as they pursue this legislation.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I rise to support Amendment 95 and also Amendment 99, both of which stand in my name as well as those of other noble Lords. The case for these amendments has been stated clearly and cogently by the noble Duke who has spoken before me, and I shall put it quite succinctly.

First, as the noble Duke said, there was no reference to the date of our exit from the EU in the Bill as it was originally drafted and tabled by the Government about a year ago. It is a fair assumption therefore that, in the Government’s view at that time, putting the date in this Bill was neither necessary nor desirable. If it had been either of those things, it would have been in the original Bill. Its inclusion at a later date was a purely political decision—alas, another of those sops to one of the all-too-frequent outbursts from the Government’s Brexit-at-any cost supporters.

Secondly, the date seeks to pre-empt, or at least to make far more difficult, the use of one of the key provisions of Article 50—that which enables a two-year cut-off date to be extended by common accord of the 27 and the exiting state, the United Kingdom. Today is not the moment to discuss the eventuality under which that provision for an extension might arise, but it is surely premature today to seek to rule out at this stage that possibility, particularly since the post-negotiation withdrawal and implementation Bill, to which the noble Duke referred, could provide an opportunity to do that if by that stage it was clear beyond peradventure that the provision of an Article 50 extension was not going to be required or needed.

[Lord Butler of Brockwell (CB)]

Can my noble friend clarify one point? I think the noble Duke said that such an extension could be for only a few weeks because it could not extend beyond the date of the European elections. Is that correct?

[Lord Hannay of Chiswick]

That is a political judgment about the views of the 27. It is not a political judgment on the views of the British Government, who have always said that they would never under any circumstances propose such an extension—one of those statements which I fear they may have to eat cold at some stage. The answer to my noble friend’s question is that it is a political judgment about the attitude of the 27. I do not think that today we can rule it in or rule it out, and I do not think we should.

Thirdly, we have heard from the Government Benches on a lot of occasions during the passage of this Bill that this is a purely technical Bill; I think the most recent occasion was earlier this afternoon. It is a technical Bill designed simply to prepare our statute book for exit day and that it is not a proper vehicle for policy formulations, in which case, and on that analysis, I suppose the Minister will shortly rise to his feet and accept the amendment, which I would certainly encourage him to do.

[Lord Newby (LD)]

My Lords, I have nothing of substance to add to the speeches by the noble Duke, the Duke of Wellington, and the noble Lord, Lord Hannay, who have made a compelling argument to delete the date from the Bill. Having the date in the Bill was really a very silly move by the Government. It was not in the Bill to start with for very good reasons. It gave flexibility to Ministers to determine what it should be. They put it in only under pressure from part of the Tory party; they only then amended it and made it more complicated under pressure from other bits of the Tory party. The original position of having flexibility in the Bill made eminent sense, was preferable to what we have now, and we should revert to the original position.