Brexit: Withdrawal Agreement and Political Declaration

Lord Keen of Elie Excerpts

Monday 14th January 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am pleased to close this debate on behalf of the Government. I thank noble Lords on all sides of the House for their contributions to this debate. It is a mark of the role of this House that even at this hour, the House is in its present form and so full as we conclude such an important debate on such a fundamentally important issue.

Trust and compromise. If we do not trust those with whom we engage, there really can never be room for compromise. If we have no means to compromise, we will find it impossible to achieve consensus. Trust and compromise. I am not a supporter of the idea of referenda. Like the noble Lord, Lord Stephen, I experienced at first hand the referendum on Scottish independence. It was attended by division, exaggeration and overstatement, and was immediately followed by demands for a second referendum that have persisted ever since. But this Parliament decided that the question of whether or not we remain or leave the EU should be put to a referendum. No one forced parliamentarians to do that. They passed an Act for the referendum by an overwhelming majority. They did not concern themselves overly at the time with the precise terms in which they were going to put that to the people—they were simply determined that it would go to the people.

Then they went to the people in a general election, and both principal parties put it forefront in their manifestos that they would respect the result of the referendum. Thereafter, this Parliament passed an Act to authorise the Executive to serve the Article 50 notice, which under international law would determine our membership of the European Union. Then, this Parliament passed the European Union (Withdrawal) Act, which defined the exit date for us to leave the European Union as 29 March 2019. So it was this Parliament which determined, both at the level of international law and in domestic law, that our exit from the European Union would take place on that date.

There followed two years of negotiations. In some places I hear those negotiations belittled. They were carried out by officials working to their instructions and performing to the best of their ability. Perhaps some would be prepared to acknowledge that, whatever the outcome of their actual negotiation. Without the withdrawal agreement I simply remind noble Lords that we do, under the law that this Parliament made and implemented, leave the European Union on 29 March of this year. That should be at the forefront of everyone’s mind.

We have heard reference to alternatives and mention of Labour’s six points. I was going to refer again to the lucid explanation of those points given by the honourable Member for Brent North, Mr Barry Gardiner, who is still the Front-Bench spokesman for Labour on the matter of trade—but I do not think I really need to repeat it. The noble Lord, Lord Liddle, gave a very adequate summary of Labour’s position on this. I would merely mention that the noble Baroness, Lady Hayter of Kentish Town, alluded to a customs union which, as described by Labour, would be directly contrary to Article 1 of the treaty of Rome and would effectively confer upon the United Kingdom, were the EU ever to accept it, a veto over the EU entering into free trade agreements with third-party countries. It is admirable in its breadth but hopeless in its intent.

Of course, the Liberal Democrats did not go into the general election with a mandate to respect the outcome of the referendum and their position, as I understand it, is that they are determined to keep the United Kingdom in the European Union by any legitimate means. I see them acknowledge that and I understand it.

[Baroness Ludford]

Legitimate and democratic means.

[Lord Keen of Elie]

Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.

We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.

A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.

[Baroness Chakrabarti (Lab)]

That is a good idea.

[Lord Keen of Elie]

I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.

As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.

I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.

We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.

In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.

The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.

Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.

[Lord Forsyth of Drumlean (Con)]

I suggested no such thing.

[Lord Keen of Elie]

I apologise, but that was my understanding.

[The Archbishop of Canterbury]

That would be above my pay grade.

[Lord Keen of Elie]

I was going to say that, even if the most reverend Primate had contemplated such a thing, he would have left room for repentance.

If we can again trust and comprehend the art of compromise, we can tell the other place that the time has come where the alternatives are worse, that we must respect the decision of the people given in the referendum and that we must proceed with the withdrawal agreement.

I shall touch on some of the observations that were made during the course of this debate. The noble and learned Lord, Lord Thomas, referred to the attempts to secure mutual recognition in the context of judicial issues. I acknowledge that steps were taken to achieve that and that it has not yet been achieved.

The noble Baroness, Lady Thornton, referred to the idea of participation in European Union programmes going forward. That is something that is reflected in the political declaration.

The noble Earl, Lord Clancarty, and the noble Baroness, Lady Manningham-Buller, talked about the need for reciprocal mobility in the areas of science and research. Again, those are matters that will be the subject of negotiation going forward.

The withdrawal agreement is our means of leaving the EU; it is not the determination of our future relationship. That is why, in the context of the future of services, and in particular, financial services, the political declaration includes commitments to co-operation on regulatory and supervisory matters.

In relation to security, the noble Baroness, Lady Manningham-Buller, pointed out how that is preserved going forward, albeit there is the issue of police co-operation, which is so important, but which is maintained beyond the EU by reciprocal arrangements—for example, in the case of Norway and Iceland, which are not within the EU but still are able to maintain the sort of relationship that we would intend to have going forward. In all those areas, we are able going forward to contemplate a partnership with the European Union that will reflect our standards, our concerns, our security and our common interest in these areas.

Can I come on, though, to the Motion that has been tabled by the noble Baroness, Lady Smith? The noble Baroness, Lady Hayter of Kentish Town, touched upon that Motion. I will come on to that in a moment, but in doing so, she also referred to the fact that in recent times we have seen a devaluation in the pound that is without precedent since the war—she mentioned the war. I think she will find that Harold Wilson, with Denis Healey as his Chancellor, devalued the pound/dollar rate from four to 2.8—which was rather more severe than anything we have experienced in the recent past.

Can I come on—

[Noble Lords]

Oh!

[Lord Keen of Elie]

I think that noble Lords will find, if they check the timings, that I am within my time, but even if I am without, I am going to make an observation about the noble Baroness’s Motion.

May I turn to the Motion, in particular its third part? I remind noble Lords of the terms, because they are important. The Motion regrets that,

“withdrawal from the European Union on the terms set out in the Withdrawal Agreement and Political Declaration laid before Parliament would damage the future economic prosperity, internal security and global influence of the United Kingdom”.

Of course, it has been most carefully drafted by the noble Baroness and the ambiguity inherent in it is no doubt deliberate.

We have a situation in which some noble Lords take that third part of the Motion and say, “I think the withdrawal agreement is less than it should be. I believe the withdrawal agreement is not perfect and therefore I can support this part of the Motion. But of course I believe that the withdrawal agreement should be approved in the other place because it is the sensible way for us to go forward and leave the European Union”. There are those of your Lordships who have indicated that that is their understanding of the third part of the Motion. Yet there are others—and I note that the noble Lord, Lord McNally, is one of them—who take that third part of the Motion to say, “The withdrawal agreement is damaging in the following ways and as a consequence I do not support the idea that the House of Commons should approve it”. So there is a clear ambiguity built into the third part of the Motion, when what we really want to send to the House of Commons is a view about what it should do with the withdrawal agreement, not the result of an ambiguous Motion, which would draw some people into approving it because they believe that the withdrawal agreement should not be approved, and others to say, “The withdrawal agreement is less than perfect but it should be approved”. I ask all noble Lords to consider whether they want to be party to such an ambiguous statement.

It is in these circumstances that I thank noble Lords for their attention and invite them to consider carefully whether they are prepared to approve the Motion that is about to be moved.

Motion agreed.