Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Kerr of Kinlochard Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a pleasure, as always, to follow the noble Duke, the Duke of Wellington—lots of soldiers have done so successfully.

Since there are no new facts in this debate, we have to deal with the fantasies of the weekend. Mr Johnson told us that the EU has treated the Attorney-General with contempt. The Attorney-General’s argument that the Irish protocol, which we negotiated, might itself be a breach of the European Convention on Human Rights seems to be an argument that might be treated with polite disdain. I do not think that the EU reacted with contempt when Mr Barnier reminded us that its original preferred offer of an all-Ireland customs union was still on the table.

The noble Lord, Lord Howard of Lympne, said that the EU is intransigent; it is worth remembering that it was to suit us and Dublin that the EU came forward with the Irish protocol, breaching two of its guiding principles—the indivisibility of the four freedoms and the impossibility of extending single market status to a non-EU member, Northern Ireland. We may now not like the backstop, but our Government asked for it, our Government signed up to it in principle in December 2017, to Mr Johnson’s loud applause, and our Government signed up to it in detail in November 2018, to Mr Johnson’s loud disgust. It was Mr Barnier who persuaded some reluctant EU member states to allow us to have it, so it is no wonder that they are a bit baffled about the position now taken by the Attorney-General.

Mr Johnson today tells us that it would be preposterous to take the option of no deal off the table as it is vital that we do nothing further to weaken our negotiating position. Here I strongly agree with the noble Duke, the Duke of Wellington, that a threat to shoot ourselves in both feet continues to surprise the EU but provides us with no negotiating leverage whatever. Mr Johnson’s preferred solution today seems to be a slight misreading of the Malthouse proposal. Mr Johnson would like us to leave on 29 March but with a longer transition period which he describes as,

“a mutually agreed standstill in the existing arrangements, so that we can use the period to the end of 2021 … to do a proper free-trade deal”.

That is a fantasy. The fact is that we cannot have our cake and eat it—that has been established over the past three years. When we leave, we lose control. We have no voice, no vote and no veto. We are obliged to follow EU rules with no say in their making. That is what Mr Johnson used to call a “vassal state”.

There are also fantasies around even in the austere columns of the Financial Times. Mr Münchau says that it would be easier to reconcile the Norway option with the Irish backstop and that the Norway option offers a smooth transition. That is a fantasy. The fact is that the Norway option would create a customs frontier across Ireland. I do not see how that is easier to reconcile with the Irish backstop. The frontier across Ireland would be just like the Sweden/Norway frontier, but with many more crossing points and much more difficult to man. It in no way solves the backstop problem. Nor is the Norway option immediately available. It would require amendments to the EFTA treaty, with five ratifications required, and then the EEA treaty, with 31 ratifications required.

I hope and believe that tomorrow the other place will again vote against the draft treaty and the political declaration because I believe it is a humiliatingly bad deal. I know it is in no way determinant of the future UK/EU relationship and I think it is a recipe for years and years of rancorous negotiations stretching far into the future.

Like the noble Duke, I hope and believe that the other place will, again, firmly reject the grossly irresponsible idea of leaving with no agreed divorce terms, no understandings, however sketchy, about the future relationship, and no transition period. Only Mr Johnson, with his well-known respect for business views, could recommend such a course. However, if the other place rejects the deal and rejects no deal, it will be five to midnight and the only third option will be an Article 50 extension. Two and two make four; you cannot reject both the deal and no deal and not want an extension.

The noble and learned Lord, Lord Hope, asked what the extension would be used for. It might allow us to rethink our red lines; in fact, we have already fudged two of them a bit. The backstop gives the ECJ a role in dispute settlement, and of course it leaves us stuck—in my view, probably for a very long time—in a partial, unequal, unsatisfactory form of customs union. A real customs union, which this House voted for on Wednesday, would be much better. We have always known that if we changed our view on the red lines, the EU 27 would change their mandate. They have always said so and they would go on saying so. An extension would also allow us to check that all this really is what the country wants. I suspect that the Government know it is not, and that this is what the Prime Minister meant when she said in Grimsby on Friday:

“If we go down that road”—


the road of a second referendum—

“we might never leave the EU at all”.

Quite. It is called democracy.

I suspect that somebody may have shown the Prime Minister the latest YouGov poll—in only two out of 632 constituencies is there now a majority in favour of leaving—or maybe she has been shown the BMG poll, in which over 75% of the more than 2 million voters who have joined the electoral roll since 2016 would vote to remain.

Mr Baker of the ERG—this is one more fantasy—told us this weekend that any delay beyond 29 March would mean that democracy in this country was effectively dead. I am not sure. No one in June 2016 voted for the date of 29 March 2019. Some may have voted on the basis that the Irish frontier would in no way be affected, because that is what the then Secretary of State for Northern Ireland told them during the referendum campaign. Some may have voted on the basis that Turkey was about to join the EU, because that is what a number of senior members of the campaign—some still in the Government—told them. Some may have voted on the basis of what was said on the side of the bus about the NHS. Some may have believed that the deal with the EU would be the easiest in history, and that all these trade agreements would be lined up ready to sign, pre-negotiated and ready to go, and that “they need us more than we need them”.

If the Prime Minister cannot get her deal through the House of Commons, the honourable course will be to take her case to the country, but I do not think that she will. I believe she knows that the country, now knowing the real exit terms, would not vote to leave. I believe the Prime Minister is, to use the words of a greater Prime Minister, frit.

[Lord Pearson of Rannoch]

I was waiting for the noble Lord to finish his peroration. His experience of matters in Brussels is probably unparalleled in your Lordships’ Chamber. Does he think that Brussels would allow us to continue in our existing free trade with the European Union, but under the WTO and not the Luxembourg court, and, if not, why not?

[Lord Kerr of Kinlochard]

I am not sure I caught all of the noble Lord’s question. If he is asking whether the EU wishes to have free trade agreements with the UK, the answer is yes, it does; tariff-free trade has always been part of the EU’s mandate. If the noble Lord’s question is whether in the event of a no-deal crash out we would secure tariff-free trade with the EU, the answer is no; the EU would on 30 March impose the common external tariff against our goods.

[Lord Pearson of Rannoch]

My Lords, that was not quite my question—