European Union (Withdrawal) Bill

Lord Judd Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Judd (Lab)]

Would my noble friend not agree that perhaps the most irresponsible aspect of the remarks that have been made in this debate on Ireland is that painstaking work has gone on for a number of years now in building trust between two communities, with those communities beginning to establish a tradition of working together?

[Lord Adonis]

My Lords, I could not agree more with my noble friend, nor with all those other noble Lords who have responsibility for Northern Ireland, or have held it in the past, including the noble Lord, Lord Patten, my noble friends Lord Hain and Lady Kennedy, and the noble Lord, Lord Carlile, not least in his role as reviewer of terrorism legislation. Everyone who has been engaged in this sees the continuing value of the Northern Ireland agreement. It is a solemn undertaking on the part of the United Kingdom. It is an international treaty. Playing fast and loose with peace in Northern Ireland in the cause of Brexit is utterly reprehensible.

We are looking forward to the Minister’s reply. I know that he has a mountain of amendments to reply to, but I am afraid that is the fault of the people whose responsibility it is to group them, who seem to want to group almost everything in the Bill into one group. I hope that when he replies he will begin by saying from the Dispatch Box that the Government remain committed to the Good Friday agreement, that they wish to see the restoration of devolved government in Northern Ireland, and that the Government will use every endeavour to do that and to ensure, as the Prime Minister also said in solemn undertakings at the end of last year, that all of the commitments that the Government of the United Kingdom reach in respect of Brexit will fully honour the Good Friday agreement. I take the amendments that we will discuss later, which my noble friend Lord Hain and others have tabled, which would enshrine a commitment to abide by the Good Friday agreement in the text of the Bill, to be immensely important to our consideration of the Bill, particularly in the light of comments made in the last week.

My amendments focus on two particular areas where I seek the Minister’s guidance, because we have many long debates to come, and we need to establish a good evidence base as we do so. I take to heart the words of the Minister for Exiting the European Union, Mr Baker, when the House of Commons was considering the Bill—I was glad to see him at the Bar earlier—and he said:

“The Government have always been clear that the purpose of the European Union (Withdrawal) Bill is to ensure that the UK exits the EU with certainty, continuity and control”.—[Official Report, Commons, 14/11/17; col. 206.]


We can have certainty, continuity and control only if we know what will happen as a consequence of enacting the Bill.

Therefore, there are two areas that I particularly wish to probe the Minister on. The first is the extremely important issue raised by the noble Baroness, Lady McIntosh, about the status of the European Economic Area and our membership of it. There is a debate that will range far and wide across our consideration of this Bill and future Bills as to what is the right status for the United Kingdom if and when we leave the European Union: whether we should be in the EEA, or in the customs union but not the single market, or in the single market but not the customs union; whether we should have bespoke trade arrangements, or whether we should belong to a customs union but not the customs union. The Schleswig-Holstein question was positively simple in comparison with the options and complexity of the options on offer but for our role as legislators, it is crucial that we understand the consequences of decisions that we take in respect of the Bill when we enact it. In many crucial areas—having read, as many other noble Lords will have done, all the debates in the House of Commons on the Bill—it is still unclear what will be the legal position in key respects after the enactment of the Bill.

The issue raised by the noble Baroness, Lady McIntosh, is of acute concern in this respect. The question that I hope the Minister will address himself to is: what is the procedure under which the United Kingdom will leave the European Economic Area if and when we leave the European Union? The noble Lord, Lord Owen, who I am sorry to say is not in his place this afternoon, has written, with help from serious lawyers—including, I think, one or two in this House—a very long and learned paper on precisely this issue. It says that there are two very different views as to what the position is, partly because the EEA agreement is itself ambiguous about the nature of the relationship between the European Union and the European Economic Area.

The European Union is itself a contracting party to the EEA agreement and on one reading—I am now going into areas where, seeing so many lawyers around me, I am waiting for them to leap in at any moment, but the definitive view from the Government is going to be important here—it is therefore not possible for those states which leave the European Union to remain a party to the EEA agreement. On another reading of the treaty, Her Majesty the Queen is the signatory to the treaty independently of the United Kingdom’s membership of the European Union, and we would therefore continue to be members of the EEA when we leave the European Union. As a layman in these matters, this looks to me to be an issue of huge consequence. When and if we leave the European Union on 29 March next year, do we or do we not continue as a member of the EEA simply by virtue of leaving the European Union? If we do not leave the EEA, what is the procedure under which we do leave the EEA? Does it require a vote, does it require legislation, or are the Government proposing that it should be done by the royal prerogative? These are big issues and I hope the Minister can address himself to them, because they will have a significant bearing on amendments we raise later in Committee and on Report.

The second issue concerning withdrawal from the European Union, which is what the half of the Bill that we are substantially debating at the moment is about, is whether it is necessary to withdraw from the entirety of the European Communities Act 1972, or whether it is in fact legally possible—or what would be the consequences of deciding—to withdraw from some parts but not from others. This is an issue of such importance because of the customs arrangements enshrined in Part 2, Section 5 of the 1972 Act, which sets out all the arrangements under which the United Kingdom agrees to abide by customs rules set by the European Union. That is, as I read it, a large part but not the entirety of our membership of the customs union.

The question that was raised in the House of Commons but not properly debated, and that looks to me to be of significance to our debates going forward, is about not disapplying the customs clauses of the 1972 Act— Part 2, Section 5, and the appropriate schedules. If they remained in force and we repealed the rest of the Act but not those—by virtue of that fact, subject of course to an agreement with the European Union itself, we would remain in the customs union. Again, in terms of the legal means by which we might secure the objective which many noble Lords wish to see, continuing membership of the customs union and single market, that is a point of great significance.

Finally, in terms of the objectives we are seeking to achieve, in her Lancaster House speech, the second of the two significant speeches she has given on government policy in respect of Brexit, the Prime Minister, addressing our European partners, said:

“The decision to leave the EU represents no desire to become more distant to you, our friends and neighbours … We do not want to turn the clock back to the days when Europe was less peaceful, less secure and less able to trade freely”.


In my view it is impossible to see how we can have a Europe which maintains peace unless we start with peace within our own borders, which must mean peace guaranteed in Northern Ireland, hence the centrality of the Good Friday agreement to our consideration of the Bill. When it comes to,

“less able to trade freely”,

I take that to mean not entering into any trade arrangements which are less advantageous for this country and involve any more border controls than currently apply. I look forward to the Minister explaining to the Committee how leaving the customs union and the single market can make it easier for us to trade than the extremely advantageous arrangement we currently have as a member of the European Union.