Outcome of the European Union Referendum

Lord Kerr of Kinlochard Excerpts

Tuesday 5th July 2016 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I very much agree with the noble Baroness’s main theme and, like the noble Lord, Lord Giddens, I pay tribute to the remarkable speech of the right reverend Primate the Archbishop of Canterbury. I cannot match it and therefore will be more mundane in making six points about Article 50.

First, the reference in the first clause of Article 50 to the member state deciding,

“in accordance with its own constitutional requirements”,

has been much discussed, including by the noble and learned Lord, Lord Wallace, this morning. The intention of the phrase was simply to make the point that how the decision is reached is entirely a matter for the member state; just as with ratification procedures, there is no EU template. The question of whether a UK parliamentary procedure is required is one for a UK Parliament and nothing to do with anybody in Brussels. There is no relevant EU law; it is not an EU issue.

I am inclined to agree with the argument of the noble Lord, Lord Pannick, although I am not a lawyer, that there should be a parliamentary procedure. But that is not because I would wish to vote against leaving if there were a vote here. We are where we are and, in the light of the referendum result, I would with a heavy heart vote for leaving. Of course, I believe that it is a serious mistake as our influence across the world will be much diminished. Of course it would be a disaster for our economy and lead to a decade of economic and political uncertainty, as Mrs Leadsom so succinctly put it. Of course, I am also sad and angry that the case against referenda, and for representative democracy, has been confirmed by a campaign marked by mendacity and irresponsibility, in which assertion has trumped—yes, trumped—fact and argument, and in which a Justice Minister said that the people of the country were fed up with experts. I am determined to be dispassionate today. We are where we are and if the Government act on the advice of the noble Lord, Lord Pannick, and put a resolution to the House empowering it to revoke Article 50, I believe that resolution should and would pass.

My second point is that there are those who argue for a different question: for the repeal of the 1972 Act, as the noble Lord, Lord Lawson, argued. I disagree for two reasons. First, my understanding, supported by the report from the committee chaired by the noble Lord, Lord Boswell, is that where a treaty sets out an abrogation procedure—in this case, a secession procedure—abrogation other than by that procedure would break international law as well as EU law. It would, of course, also poison the atmosphere for any continuing negotiation in Brussels. Secondly, although I heard the reference made by the noble Lord, Lord Lawson, to delayed commencement, I do not believe that it would make sense to destroy the foundation on which so much law and so many statutory instruments are based without first deciding which to relabel and retain, which to adjust and which to let fall, as he mentioned. While the small-state, anti-welfare libertarians skilfully avoided saying which they would let fall—health and safety, consumer protection, equality, the environment?—we know that they were not just against Brussels regulation; some of them were against regulation per se. That is easy to sell in general terms but rather harder to sell when it comes down to specific regulations, so we need a more honest and deeper debate before the repeal of the Act.

My third point is about timing. Some in Brussels and some here say that we must immediately press the Article 50 button, while some over there say that there must be no talks with us until we have. This is arrant nonsense. There is no legal basis for it in Article 50, which leaves it entirely up to the member state to decide when to issue the formal notification. It would be very wise for the new Prime Minister, whoever she is, to take time first to study the issues and talk to her new colleagues. Mr Johnson complains that the Government have no Brexit plan. How could they have a Brexit plan when he issued no manifesto on which Whitehall could base its planning? Judging by his article last week in the Telegraph, he is still consistent about his policy on cake: our goods are to have free access throughout the single market but we will not recognise the jurisdiction of the ECJ.; we will play football but bring our own referee; our people will be free to live and work across Europe, but theirs will come here only if they satisfy the controls of our points-based visa system. That is Lewis Carroll’s White Queen and her six impossible things before breakfast.

We need a plan but Brussels will have to wait until we have one, and it must not be based on Daily Mail thinking. Mr Paul Dacre told the country in his leader last Saturday—he was no longer campaigning, as he has won—that Brexit carried no terrors because services are not in the single market. I think I have been unfair to Mr Dacre. I had thought his campaign was driven by an insular ideology, but I now think it is probably just plain ignorance—I am being dispassionate today. My dispassionate point is that the timing of our triggering Article 50 is entirely up to us, whatever Brussels says.

My fourth point is about sequencing. Article 50 is about withdrawal, about divorce. Some in Brussels assert, wrongly, that there can be no trade talks with us until the divorce is through. I refer them to Article 50(2) and the reference there to,

“taking account of the framework for”,

the seceding state’s,

“future relationship with the Union”.

How could the parties to the treaty respect that unless they were in parallel agreeing such a framework, the architecture of the future and the principles on which the new partnership should be based? All the detailed discussion of future relations in trade, finance, energy, aviation, foreign policy and the fight against crime will take years, but there is a treaty requirement to establish the framework before the Article 50 divorce terms are agreed. The Brussels institutions will have to accept that. I would add that our own preparations for that separate, parallel, simultaneous negotiation will be much more complex than the preparations for the Article 50 negotiations.

The fifth point is one at which I part company with the noble Lord, Lord Pannick. In his Times article he referred to a notification under Article 50 as “irrevocable”. He used that as a flying buttress to support his principal argument, with which I agree, about the need for a prior Act of Parliament. I do not think he needs such a buttress. I also think it is a rather fragile one. Nothing in the treaty says that a notification cannot be withdrawn, nor does it say the opposite. There is no precedent to turn to, so it would be a political question. If we were to change our minds on discovering from the Article 50 and framework negotiations what out looks like, I do not believe that our partners would say, “Too late, out you must go”. Some might, like the prodigal son’s brother, be unhappy. Some might be tempted to seek a price. All that is speculative. My point, which is highly academic now but relevant to the concerns advanced by the noble Lord, Lord Butler of Brockwell, is simply that there is no treaty basis for regarding an Article 50 notification as irrevocable.

My last point has already been made and I can be brief. It gives me great pleasure to pay tribute to the noble Lord, Lord Dobbs, for the way he put it: “EU citizens here, hate crime and bargaining chips—this is no way to create a good atmosphere for a negotiation”. Such incidents are being well reported across the continental press. I do not need to add to what has been eloquently said from all sides of the House, but I hope that the Foreign Secretary and the Home Secretary are listening and will reflect again on what they said yesterday. Student politics may have trashed the country but now it is time for the grown-ups to reassert themselves, reassert our values and restore our reputation.