Article 50 (Constitution Committee Report)

Lord Kerr of Kinlochard Excerpts

Tuesday 22nd November 2016 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a pleasure to follow the noble Baroness, Lady Suttie, who knows a great deal about EU matters. It is also a pleasure to speak in the debate on two such admirable reports.

I do not intend to say much about the Article 50 report now, because the issue is with the Supreme Court. I merely mention two developments that have occurred since the Constitution Committee finished its excellent report. First, on 13 October, the President of the European Council, Mr Tusk, confirmed that a notification under Article 50 was not irrevocable, thus confirming the view taken at the time Article 50 was drafted by the leading legal adviser to the European Council. Of course, it is not the case that such a withdrawal could be lightly done or would be lightly received; there could well be a political price to pay. The point is simply that, in EU law, the institutions believe that it is possible to withdraw one’s notification.

Secondly, there is what the No. 10 spokesman said immediately after the High Court ruling:

“Government lawyers … made clear … that, as a matter of firm policy, notification of withdrawal will not be withdrawn”.

I am no lawyer, but as I read “a matter of firm policy”, implicitly the government spokesman was conceding that, legally, it could be withdrawn. However, the Supreme Court is about to speak on this.

I very much agree with the thrust of the report from the Constitution Committee, in particular with paragraph 43 that it would be,

“constitutionally appropriate that the assent of both Houses be sought for the triggering of Article 50”.

That seems the key point. Whichever route is chosen, whether it is an Act of Parliament or a resolution of both Houses, will presumably be settled by the Supreme Court. I am confident that, if the Supreme Court decides that the Government are correct and an Act of Parliament is not required, the Government will nevertheless submit a resolution, which will proceed through both Houses. I am confident of that because I cannot see any downside in it. The Government must be aware that this House and the other place would pass such a resolution by a large majority, for the reasons given by the noble Lords, Lord Hunt and Lord Lang. It is not possible to decide after the referendum that it produced the wrong result—the result is the result is the result—so there is no doubt that, for many of us with a heavy heart, the resolution would be carried.

I therefore rather agree with the noble Lord, Lord Hunt, that the Supreme Court case is a bit of a distraction and side issue. It seems that we are going to be given a vote. I also believe that that is correct because, in the end, the Government are bound to see that it is right to have a full debate on what kind of Brexit they intend to seek. The referendum, as the report of the committee chaired by the noble Lord, Lord Lang, pointed out, does not tell us that. The referendum answered a binary question, but it did not tell us what kind of Brexit we should be going for. That is what we now need to consider.

I agree with paragraph 6 of the Constitution Committee’s report, that the issue is,

“where among the range of potential outcomes the final settlement by which the UK leaves the EU will be made”.

I add only that Article 50 is clear that we cannot dictate the terms of our own departure; the 27 will also have their view. What is important for us now, however, is that the Government should be open and honest with the country about the terms they will propose when they trigger Article 50.

Up to now, that is not happening. Our debates in this Chamber are extremely well informed and have all the public resonance of one hand clapping. Anyone who as a child has played solitary tennis against a brick wall knows that the wall is better than the hedge. If you hit the hedge, nothing comes back. That is the nature of our debates. I have the highest regard for the noble Lord, Lord Bridges of Headley, but I hope that today he will prove to be a brick rather than a privet.

I agree with all of the report from the committee chaired by the noble Lord, Lord Boswell, but what struck me most was the astonishing quotation in paragraph 28, from the Secretary of State for leaving the EU—I refuse to say “Exiting”; it is not a verb. Mr Davis is quoted as saying:

“Before Article 50 is triggered, there will be a frustrating time, because we will not say an awful lot. We will say a bit; we will lay out guidelines but, as the Prime Minister said, we will not give a running commentary on it, because that would undermine our initial negotiating stance from the beginning”.

I find that really hard to construe. Our initial negotiating stance will not be a secret from the foreigners for very long, because when we say it, they will hear it. How could it be undermined by being presented to the people and Parliament in advance? Would it not be strengthened? Would the Government’s negotiating hand not be rather stronger if they could point to the fact that the country, and Parliament, was with them, had heard them and supported, or did not dissent from, what they were trying to do?

If, as I suspect, the real reason is that the Government are in some difficulty in deciding exactly what their initial negotiating stance is to be—perhaps because the Foreign Secretary has failed to convince his colleagues that it is possible to have one’s cake and eat it for all the dossiers—might it not help the Government to decide what they should ask for, if there were an informed public debate about just that?

So, in my view, we need a Green Paper now. In my view, Mr Davis was absolutely right when he first spoke of a White Paper. I am sure that we need a White Paper and am pretty confident that we will get one, although I worry that we may get it rather late in the day. Ominously, he has gone a little quiet about the White Paper. I think that we need a Green Paper first. It would not directly concern the triggering of Article 50, nor what is going to happen, and nor would it directly concern the Article 50 negotiation as such. It should concern the framework for the future relationship between us and the Union that we left.

To quote from paragraph 2 of Article 50, the negotiators are required before they complete the Article 50 negotiation—which is the divorce negotiation—to take,

“account of the framework for … future relationship”.

A Green Paper could be a first draft of our prospectus, or proposals, for what that framework should be, and it would set out facts and options. A White Paper would be harder and would come closer to the time of the negotiation, but a Green Paper could explain to the country—which, frankly, does not know—what membership and non-membership of the customs union, and what membership and non-membership of the single market, actually mean.

What did the Prime Minister mean when she said in relation to a customs union that it was not a binary choice? I am not sure quite what she meant because it is, on the face of it, a binary choice, although some exclusions might be possible. I am not sure that it would be compatible with WTO rules to be members of the customs union only for certain goods—perhaps, for example, motor cars. I suspect that would not be possible.

I am not sure quite what assurances we can have offered to Nissan, therefore, or what assurances we could offer to Northern Ireland and the Republic in relation to the border between them, if we leave the customs union. But I think that the country is as ignorant as I am about this, and I think that the Government should come clean before they make up their mind. The Government should be telling the country what the choices are and what the upsides and downsides are of the various options. I know that the Foreign Secretary and Dr Fox believe that we must leave the customs union. I can understand that—for Dr Fox, it must be an existential issue—but it seems to me that it is not absolutely clear where Mrs May stands. Perhaps before she makes up her mind, she might like to see parliamentary debate on the basis of a Green Paper.

Is it the Government’s view that we could, or perhaps should, leave the EU but retain partial sectoral membership of the single market? Sometimes, that seems to be the Chancellor of the Exchequer’s view. We might remain members of the single market in financial services, for example. For myself, I am not sure whether our partners across the channel would be willing to see such cherry picking, particularly in the light of the Prime Minister’s Birmingham speech rejecting any role in this country for the Court of Justice or for regulation written in Brussels. Could we stay on the field, carrying on playing but bringing our own referee and playing to our own rules? I am not sure. That could be a tricky negotiation.

It follows that I am not really sure what soft Brexit means. I am not sure that there is a feasible soft Brexit; I fear that may be wishful thinking. Mr Tusk said on 13 October that the choice is “hard Brexit” or “no Brexit”. I would like to think that we were looking for smart Brexit, which might mean a phased Brexit. In my view, it is not essential that everything happens at precisely the same time. It could be that timetables had different dates for different events.

Yesterday, we saw Mrs May assuring the CBI that she understood the need to avoid a cliff edge, and the commentators all interpreted that as meaning that some kind of transitional, temporary or interim deal would be required. Yes, I see the argument, but I have difficulty with it. Building a bridge requires clarity about where you want to be on the other side. It is difficult to envisage concessions for an interim arrangement that would not be accepted in a permanent arrangement. One needs to have a degree of clarity, and agreed clarity, about where one is heading—which brings us back to the framework for the future relationship. That is where we should concentrate now.

I would say that there are elements of that framework that it would be possible for the UK to signal its thinking on right now. For example, I believe that the Prime Minister’s Home Office experience will lead her to think that continuing close co-operation with the EU that we left on issues such as terrorism, drugs, crime and people trafficking is a good thing, and that an institutional arrangement for such co-operation would be desirable in the UK interest. I believe that would also be seen as desirable by the 27 in their interest.

Secondly, I believe that the Foreign Secretary will by now have realised that it is not really wise to boycott EU meetings if one thinks they might come up with the wrong answers. If one thinks that, the thing to do is to go and make sure that they do not. That is his job. I suspect that he will come to understand that working closely with EU partners—in future, former EU partners—will remain important to British foreign policy after Brexit. Could not our draft of the foreign policy pillar of the future framework be written on precisely that principle and say just that? We will want arrangements for co-ordination on foreign policy, security policy, exchange of intelligence and action on sanctions in future. I believe that will be our position. It probably is our position now, although we have not said so yet to anyone.

Thirdly, I believe that the Government are probably listening to the research community and the universities. I believe the Government probably think that they will, in the end, propose an arrangement whereby we contribute financially to, and receive support from, the EU research programmes, and the networks survive. I think that will be the Government’s position. I suspect that, privately, it is their position now. I do not see any downside in making clear that that would be where we would want to be in a framework negotiation.

It could be argued that to offer positive proposals at this stage for the future framework would give away our negotiating capital. That is nonsense. Much of the Article 50 negotiation—the money negotiation—will be a rough, zero-sum negotiation, but most of the framework negotiation will not be. In the framework negotiation, one will be talking about common interests, mutual interests, and will be trying to define the right future structures for pursuing these interests.

I believe that highlighting these themes now would bring benefits, not costs. In fact, I think it is becoming very urgent to do so. As the noble Baroness, Lady Suttie, said, the atmosphere in Brussels is not good and is getting worse. The Birmingham speeches, the sense that the Government are talking only to themselves, making policy in an echo chamber, the gratuitous insults from the Foreign Secretary, the random pronouncements of various Ministers, usually immediately followed by a slap down from No. 10, leave our friends—and we still have some friends in Brussels—close to despairing. They fear that there is no plan, and that when one emerges it may be rather unrealistic. They see a growing risk that the Article 50 negotiation will fail, and we will go over the cliff edge into legal chaos.

I think this is probably exaggerated, and some of these concerns could be met and would be met if the Government were to present at least a partial prospectus setting out aspects of the future relationship that they would like to see. I believe that on some aspects—I gave three candidates—they could agree now on what it is they want and there would be no downside to coming clean about it. As the noble Lord, Lord Hunt, said, Mrs May has said that, when we leave the EU, we will not be leaving Europe. Excellent. Could we not define and explain what we mean by “not leaving Europe”? That would counter the stuff in the press here that is so widely read in Brussels.

I think that a smart Brexit is not impossible, but it needs smart preparation, and I am not sure it is getting it now. Smart preparation means beginning a new, real dialogue with Parliament. The determination of precisely what kind of Brexit the country wants must entail a role for Parliament. It means being smart about the signals we send across the channel—smarter than we are being right now.