Brexit: Negotiations

Lord Kerr of Kinlochard Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, it did not have to be like this, and the drafters of Article 50 did not think it would be. The article makes no mention whatever of a political declaration. It mentions a framework. It says that the divorce treaty negotiators must take account of the framework for the future relationship. Where is that framework? You cannot take account of something that does not exist. The sequence has been reversed, and all we have is this seven-page checklist of issues and aspirations for future negotiation, no doubt now being fleshed out with added adjectives. Where are the agreed architectural blueprints, the agreed struts and girders of the future relationship? Where are the concrete mutual commitments? They do not exist, as the noble Lord, Lord Bridges, elegantly pointed out.

In order to avoid further government defections, the language now being written will no doubt remain sufficiently loose to cover options we well know the 27 will not look at. Maybe we will see the Chequers common rulebook come back again, or the magical thinking about technological frontiers. The 27 know that, once we have left, each of them has a veto. The divorce terms need only a qualified majority in Council, but the forward-looking treaty, when it is written, will require unanimous approval and 27 EU countries national ratification. So their hand is much stronger, and our negotiating capital drains away the moment we leave.

How we got into this mess is a subject for another day. Suffice to say that this is what happens if you continually kick the can down the road, avoiding honest debate on the real trade-off between sovereign autarky and economic well-being. This is what happens if you table no framework proposals and start the Article 50 clock disunited as to destination and strategy. Decisive only in indecision, this is where you end up, offering the country only a blind Brexit and the certainty only of many more years of uncertainty, damaging investment, growth, jobs and incomes.

The incentive for the 27 ever to end that uncertainty is not obvious. At least until late 2020, perhaps 2022, we would apply all EU rules and ECJ rulings, although we would have no say in their making. If the backstop then kicks in, it gets much worse. Still unable to conclude third-country deals for trade in goods, but now with regulatory and fiscal checks on our trade with the 27, we get the friction without the freedom. Why would the 27 rush to end an arrangement so unbalanced in their favour?

We need to stop and think. Crashing out would be crazy, but the Prime Minister has acknowledged that this humiliating treaty is not the only alternative. Continental Europe would willingly stop the clock if Parliament were to decide to put the question back to the country now that it is clear what leaving would mean. The polls show that the people want to be asked, and that two out of three believe that the deal on offer would be bad for them.

If the Government believe in their divorce treaty and that sufficient certainty about the future can be found, without any agreed load-bearing framework whatever, but simply in a vague declaration cobbled together in a week, let them put that case to the country. If the country agrees and accepts the risks and the likelihood of a protracted period of economic pain, we leave. The greatest risk of social division and constitutional disruption would lie in denying the country the final say it now wants while our destiny is still in our hands, and before we hand back control.