Brexit

Lord Kerr of Kinlochard Excerpts

Tuesday 4th July 2017 Lords Chamber

[Baroness Anelay of St Johns]

My noble friend has a real way with words. I agree.

[Lord Kerr of Kinlochard (CB)]

My Lords, can the Minister tell the House why the Government have not put forward their proposals for the framework, as required by Article 50, for the future relationship, and when they will get round to doing so?

[Baroness Anelay of St Johns]

My Lords, we have set out our framework from the point of view of the objectives in, for example, the Prime Minister’s Lancaster House speech, repeated in the White Paper. That is the framework to which we are working and the one which our colleagues in the European Commission see as part of our negotiations. We have already had one round of those negotiations, and are looking forward to the second, starting on 17 July.

Brexit: European Union-derived Rights

Lord Kerr of Kinlochard Excerpts

Tuesday 4th April 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I support both Motions. On the first Motion from the noble Baroness, Lady Hayter, I can be very brief. I will start with a quote:

“I think it is absolutely right to issue the strongest possible reassurance to EU nationals in this country, not just for moral or humanitarian reasons, but for very, very sound economic reasons as well. They are welcome, they are necessary, they are a vital part of our society, and I will passionately support this motion tonight”.—[Official Report, Commons, 6/7/16; col. 939.]


That was said by Boris Johnson. The Motion he was passionately supporting asked the Government to,

“commit today that EU nationals living in the UK shall have the right to remain”.

He was right, for once. I worry that by letting this question get tied up in the negotiation we risk to years of uncertainty for both sets of people—their nationals here and our nationals there.

The European Council’s draft guidelines say:

“Negotiations under Article 50 … will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately”.


That is ominous. Yes, President Tusk and Monsieur Barnier have picked out citizens’ rights as a priority first-phase issue, and, yes, the Prime Minister suggested aiming to strike an early agreement. But it could still be held up behind other first-phase issues such as the money issue—settling the bills—on which negotiations will inevitably be protracted and unpleasant. It is a serious sequencing error to let a win/win common-interest negotiation be held up by a win/lose, zero-sum negotiation —but it could happen.

It could also still be averted—even now—if, before 29 April, before the European Council approves these guidelines, the Government were to do the decent, moral and economically sensible thing, as recommended by the Foreign Secretary on 6 July last year. The Government should be announcing now that those non-UK EU citizens living here will retain the right to do so, and that we expect our partners to follow suit. My answer to the noble Viscount, Lord Hailsham, is that they would. It is a win/win, and our partners see that, too. We should take the issue off the table right now.

On the second Motion, from the noble Baroness, Lady Smith, my particular concern about the amendment that we passed by such a large majority, and which the Commons rejected, was the risk that there would be no deal. My concern was that the Government have as yet given absolutely no commitment, oral or written, that in the event of no deal there would be a meaningful vote in the House of Commons. Indeed, the last time we addressed this question, last week, the noble Lord, Lord Bridges, appeared to be saying that there would be no vote because there would be no deal to vote on. A situation in which there was no deal would be the situation in which we would most need to have a vote.

In the last week, I think the risk of no deal has grown slightly. I had put it at about 30% and it is probably now a little higher than that—not because of Gibraltar and silly interventions from here; not because of the reference to Gibraltar in the European Council draft guidelines, which was absolutely predictable; not because of the absence of any reference to it in the Prime Minister’s letter, since any reference would not have made the slightest difference, so that criticism of her letter is invalid; nor even because of the unfortunate perception that her letter contained a threat to withdraw co-operation against crime and terrorism if we failed to get a good deal on trade. Any such threat would have been seriously counterproductive and would have suggested a dangerously transactional approach to questions of security—but I believe our partners accept that the drafting infelicity was unintentional.

The reason for my concern is a bigger one: the mismatch between the Prime Minister’s bland assertion in her Statement last Wednesday that there would be a phased process of implementation and her insistence that in two years’ time:

“We will take control of our own laws and bring an end to the jurisdiction of the European Court of Justice in Britain”.—[Official Report, Commons, 29/3/17; col. 252.]


Unsurprisingly, the draft European Council guidelines state:

“Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply”.


I do not find anything surprising in that; it is what I would have expected the European Council to be advised to agree, and what it will agree. But it means that, in the transition or implementation phase, the ECJ’s writ will still run in this country—and, presumably, that the European Union’s resistance to our cherry-picking of the acquis would apply to an interim phase just as much as to a permanent position. So, despite the great repeal Bill and despite losing our votes in the Council and the Parliament, we would still be applying all EU laws during the transitional phase. That is not exactly what Mr Davis told the other place and is quite a climbdown from Mrs May. Therefore, the risk of the Government walking out has grown.

That is why it really is troubling that the Government are giving no commitment to a meaningful vote in the Commons in the event that the Government decide to throw in the towel and walk out with no deal or no transition deal. With all due respect to the Prime Minister, “No deal is better than a bad deal” is plain wrong, and Mr Johnson was wrong to say that to leave with no deal would be “perfectly okay”. The Commons Brexit committee’s report, the CBI and the IoD are all correct in saying that no deal would be a disaster. If the Government were to head for the cliff edge, Parliament must be given the chance to require them to think again—to seek an extension of the negotiations or to consult the country. That is the principal reason why I strongly support the Motion from the noble Baroness, Lady Smith. Parliament needs to work out how best to ensure that it gets its say on the emerging outcome of the negotiations, particularly if it does not match Mrs May’s aspirations, and particularly if the outcome is no deal—and Parliament needs to work out how to do so in good time, before the die is cast.

[Lord Campbell-Savours (Lab)]

My Lords, I shall be brief. I have a simple question for the Minister: what happens if there is a blockage in the negotiations on these matters in the wider European Union? In principle, is it possible for the UK to enter into bilateral agreements with 27 individual nation states offering rights to national residency in the UK in return for reciprocal rights for UK citizens living in the Union? The advantage of bilaterals if we hit a stalemate would be that any state opposing such concessions at the time of final settlement of these matters could find their own citizens’ rights in the UK in jeopardy and subject to review. It would have the effect of moving the debate to the capitals of obstructive states in the circumstances of a blockage in the negotiations. I wonder if the Minister might be able to help us with that very simple question.

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Higgins (Con)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Taylor of Holbeach]

I think my noble friend will find that my noble and learned friend has sat down. There will be an opportunity for him to speak, but I indicated earlier that I thought we should hear from the noble Lord, Lord Kerr, at this stage.

[Lord Kerr of Kinlochard]

I am grateful to the noble Lord. The first of my two quick points is to clarify the issue of irrevocability raised by the noble Lord, Lord Finkelstein—and I am glad that he did so. We discussed the issue extensively at Second Reading and he told his readers in the Times that we did not mention it at all, so I am glad that he is here this time. I also pay tribute to the skill of the Lord, Lord Pannick, both in court and in this House. When he won his case in the High Court—not the Supreme Court—the No. 10 spokesman was asked about revocability and said that,

“as a matter of firm policy, our notification to withdraw will not be withdrawn”.

After our extensive debate at Second Reading, the Minister was put on the spot by the noble Baroness, Lady Symons of Vernham Dean, about whether it was revocable or not. The Minister is a very clever man and replied:

“As a matter of firm policy, our notification will not be withdrawn”.—[Official Report, 21/2/17; col. 320.]


That is very similar to what was said by the No. 10 spokesman, which is always wise in a Minister. Last Wednesday, in Committee, the same issue of revocability was raised. When the Minister replied to the debate on the amendment, he said that,

“as a matter of policy we will not withdraw our notice to leave”.—[Official Report, 1/3/17; col. 923.]

The wording was slightly wrong there, but I am sure they will forgive him.

Every time the Government say that,

“as a matter of policy”,

firm or infirm, they will not withdraw the notification which the Bill authorises, they implicitly confirm that, in law, they could withdraw it—and they could. If you want a definitive source, do not look at me, listen to the President of the European Council, who has said so on the record. If you want a definitive EU legal view, and this would be an EU legal question if it were ever tested, try the present head of the Council’s legal service or the one who advised me when I was writing the wretched thing. Just a point of clarification: it is revocable.

My second point relates to the discussion of subsection (4) of the new clause proposed in the amendment. The noble Lord, Lord Lawson, detected deep evil in it. What is being said there is that it is for Parliament to decide whether no deal is better than a bad deal and to make a judgment on whether the deal is bad and that the chaos and disruption of leaving with no deal is preferable. I struggle to think of a deal which could be worse than no deal. Last week, the president of CBI said that the worst possible scenario was leaving with no deal. However, that is not the point: the point is about parliamentary sovereignty. The issue of whether no deal is worse than the deal which is available on the table on that day is for Parliament to decide. That is what subsection (4) of the amendment says, and I support it.

[Lord Grocott]

My Lords, the noble Lord, Lord Kerr, quite rightly—and entertainingly as always—referred to the crucial element of parliamentary sovereignty. We have heard from top lawyers and diplomats and I only offer some thoughts as a run-of-the-mill parliamentarian. I could not possibly vote against parliamentary sovereignty. Voting against an amendment such as this would be like voting against motherhood and apple pie. It is something in which I passionately believe. It was one of the reasons why many people—and I was one of them—were concerned during the course of the European referendum because it seemed incontrovertible that the way in which the European Union had developed involved a steady erosion of parliamentary sovereignty. It would be quite difficult to disagree with this proposition.

When addressing this amendment, we have to decide what a decision by Parliament actually comprises. I am forced to read the amendment. Proposed subsection (1) refers to,

“without the approval of both Houses of Parliament”.

Subsection (3) requires:

“The prior approval of both Houses of Parliament”,


Subsection (4) refers to:

“The prior approval of both Houses of Parliament”.


With great respect to the weight of legal opinion being offered, to propose this amendment without being clear as to what is involved in the approval of both Houses of Parliament is to leave an ambiguity at its heart. It is hardly necessary to add to what the noble and learned Lord, Lord Mackay, has already said.

I was concerned about this from the start. I raised it in Committee. There has been an attempt to move towards answering the question, “What happens if the Commons say ‘yes’ and the Lords say ‘no’?”. The solution is certainly not contained within these amendments.

I made an, admittedly inadequate, attempt with the Public Bill Office to see if there was any way in which I could put down an amendment which would satisfy, or at least address, this problem at the heart of the Bill. If the House will forgive me—as I will conclude shortly afterwards—I will read out the terms of the defunct amendment. It would have said:

“(5) If, under the provisions of subsections (1), (3) or (4), there is disagreement between the House of Commons and the House of Lords as to whether or not the agreement or decision should be approved, the view of the House of Commons prevails over the view of the House of Lords”.


That makes an attempt to explain precisely—or, I hope, resolve precisely—the ambiguity at the heart of the Bill.

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Pearson of Rannoch]

Okay, I shall skip over why the single market is a bad thing, I shall skip over the strength of our hand—because they have so many more jobs selling things to us than we do to them—and I shall skip over the fact that noble remainers who support this amendment still think that somehow EU money exists, when it does not. After every penny that the European Union gives us, we are still left with £10 billion a year net, which is—I will give noble Lords a new statistic—the salary of 1,000 nurses every day, at £27,500 a year. Whatever happens, we will go on trading with our friends in Europe, because they need it more than we do.

I end with a word of advice for the Liberal Democrats. I fancy that they are considering supporting this amendment. Their very own policy from the election before last—I do not know what it is now because it is difficult to follow Liberal Democrat policy—was that membership of this House should grow to represent and reflect the votes in the previous general election. In the last election, the Liberal Democrats got 5% of the vote. That should give them 43 seats in this House. Instead, they have 102. I will pass over in silence the fact that we got 8% of the vote, which should give us 69 seats, and we have precisely three. More seriously, however, if the Liberal Democrats use this dishonest advantage—by their own standards and manifesto—to vote down the will of the British people and the House of Commons, they will reveal their contempt for democracy and do your Lordships’ House no good at all.

[Lord Kerr of Kinlochard (CB)]

My Lords, I disagree with the amendment because I see two defects in it, one of which was highlighted by the noble Lord, Lord Lexden, a moment ago. It purports to tie the hands of Parliament—which it should not do—unlike Amendment 3, which we will debate later today, which gives Parliament the certainty of having more options. The second defect is that the amendment does not address the increasing possibility that there will be no settlement, no agreement, and that we fall out.

What I do not like in this debate—I did not like it at Second Reading or in Committee—is the suggestion that in some way it would be illegitimate for the country to think again. There is a frog chorus behind the Minister. Every time he says, “It was decided”, the chorus behind him chants, “Koàx-koáx, decided, decided”. This is the lemming position. No matter how awful the deal turns out to be, no matter how unlike the promises of the leavers the eventual deal turns out to be, no matter how steep the cliff and stormy the sea, we must go over. There is no time to think again; there is no chance of turning back on any decision.

I find that strangely reminiscent of the Moscow I worked in in 1968, when Soviet foreign policy ran on the Brezhnev doctrine. The House will remember the Brezhnev doctrine, which said that once you have voted Communists in, you cannot vote Communists out. It was a very good doctrine for running central and eastern Europe. That seems to be the position of most of the government Back-Benches today.

I hope that the noble Lord, Lord Carlile of Berriew, will consult his new right honourable friend Mr David Davis, the Secretary of State for Exiting the European Union, and will come to the conclusion that Mr Davis was right when he said that if a democracy cannot think again, cannot change its mind, it is no longer a democracy. I rather agree.

[Lord Faulks (Con)]

My Lords, I do not think I am a frog or a lemming, but I was one of the Ministers at the Dispatch Box when we took the European Union Referendum Bill through this House and I think we should have regard to what we decided in Parliament in that Act. A number of amendments were tabled but, I say to the noble Lord, Lord Foulkes, there was no amendment about thresholds, no amendment to nuance the simple question that was posed, no amendment to say that we would only leave if we stayed within the single market, and, in particular, no amendment saying that there would be a second referendum. Why not? Was it because the alternatives were too complicated? There were only two outcomes of the referendum: either we remained or we left. Was it political negligence by parliamentarians not to table these amendments, or were they content with the Bill and its binary question?

We are having this debate contrary to what was generally considered to be the law, which was that it was the right of the Government, exercising the royal prerogative—

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Bilimoria]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Green of Deddington (CB)]

My Lords—

--- Later in debate ---

[Baroness Smith of Newnham]

My Lords, we have heard much about the issue of EU nationals being a priority, but, as the noble Baroness, Lady Symons, pointed out, whatever the ambition of the Prime Minister and however great her negotiating skill is likely to be, the nature of EU negotiations is that nothing is agreed until everything is agreed. So having this as a priority will not, in itself, give EU nationals the security that they need. If the Government do not feel able to accept the amendment—and I suspect that they will not—could the Minister give further clarification not about some distant immigration Bill that will come after the great repeal Bill but about something in line with and in the spirit of Amendment 9B that will occur in the immediate aftermath of triggering Article 50?

[Lord Kerr of Kinlochard]

My Lords, I very much agree with what the noble Baroness said at the end of her speech. As the noble Baroness, Lady Symons of Vernham Dean, said, this will be a nothing-is-agreed-until-everything-is-agreed negotiation. If we do not do the decent thing now—if we do not listen to what the noble Viscount, Lord Hailsham, said at the start—when will we do it? This negotiation could last all of two years and could end without an agreement. It certainly will not end with dossiers agreed in this calendar year. So if we all believe that the decent thing will have to be done at some time, why not do it now? The Tory party really needs to remember that its guru is Burke, who said:

“Magnanimity in politics is not seldom the truest wisdom”.

[Lord Blencathra (Con)]

My Lords—

--- Later in debate ---

[Lord Howard of Lympne]

My Lords, I oppose this amendment on grounds that are rather different from those advanced by my noble friend. I submit that this amendment is wrong in principle, constitutionally improper and unnecessary. Your Lordships might think that given that it was proposed by the noble Lord, Lord Pannick, I am being rather courageous and perhaps foolhardy in suggesting that it is constitutionally improper but I hope to explain to your Lordships why I take that view.

My view is based in particular on subsection (4) of the new clause. That would make possible—indeed it encourages—a never-ending situation in which the Government reach an agreement with the European Union and brings it to Parliament, Parliament rejects it, sends the Government back to the European Union, the Government come back to Parliament and Parliament rejects it again. The only way that process can be ended is by the Government having the power to bring the negotiations to an end. What would happen if the process envisaged by subsection (4) were to take place is the intrusion of Parliament into the negotiating process. That is why I say this amendment is constitutionally improper.

[Lord Kerr of Kinlochard]

I wonder if the noble Lord is familiar with Article 50, where it is clear that if no agreement is reached within the two-year period the state that intimated its intention to withdraw, if it has not withdrawn that intimation, leaves the European Union at the end of those two years. The idea of the never-ending negotiation is a fantasy. The article is completely clear.

[Lord Howard of Lympne]

It is hardly a fantasy if the negotiations are brought to an end speedily, as we all hope they will be. If they are brought to an end six months before the end of the two-year period, the process I identified as being made possible by new subsection (4) could well take place. Parliament should not intrude itself into negotiations. It is not the job of Parliament to negotiate. That may seem self-evident but since this amendment was moved by the noble Lord, Lord Pannick, I thought I had better look for some authority for the proposition I am advancing and went to the supreme authority on these matters— I went to Dicey. Dicey says that Parliament,

“should neither directly nor indirectly take part in negotiating treaties with foreign powers”.

That is what subsection (4) of this amendment would make possible, which is why I suggest that it is constitutionally improper.

European Union (Notification of Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 21st February 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I leave the great constitutional issues to Edmund Burke and the noble Lord, Lord Foulkes of Cumnock—they are very similar thinkers; I am a great fan of both of them. I want to say a word about the White Paper. Others have mentioned that it is a little long on assertion and bravado and a little short on facts. I thought that I would offer four facts.

First, it is a fact that if we leave the European Union, our economic relationship with it will be less advantageous than it is now—that has to be a fact. If we leave the single market and the customs union, if we reject common regulation and common jurisdiction, there will be a price to be paid; there has to be a price to be paid. Secondly, it is a fact that our relationships with the rest of the world will be more difficult economically. We will be less attractive to them. Why should they be so keen to open their markets to us if we are no longer their entry point to a market of 500 million? Thirdly, it is a fact that trade halves as distance doubles. Fourthly, it is a fact that customs controls cause delays that damage modern global supply chains and that building trade barriers hurts both sides, but the bigger economy loses less. Obviously, the Government know all these facts but have decided to put our autarchic sovereignty ahead of economic well-being. It is a sad fact that it will not be those who got us into this fix who will suffer. The Bullingdon boys will be just fine; the country may not.

But the country is still in the dark; it does not know where it is going. We are in this bus heading for Heathrow, with mendacious slogans on the side, and we have no idea what the destination is. We do not know what the Government mean when they say that they may have to change our economic model. They may have to go for a low-regulation, low-tax and low-welfare economy. What do they mean? The White Paper does not tell us. The White Paper does not tell us the future of farming in this country, of environmental law in this country or of social law in this country. It does not tell us how the Belfast agreement can survive if the Irish Government are obliged on the inner Irish frontier to run the customs frontier of the European Union.

It will not do just to refer to the oxymoronic repeal Bill and to tell us that all applicable laws will be temporarily extended while we think about their fate. The noble and learned Lord, Lord Hope of Craighead, spoke authoritatively yesterday on the Supreme Court ruling. The Supreme Court says that rights resulting from EU membership can be extinguished only by legislation; this Bill extinguishes no such rights. But some rights fall away the moment we leave the European Union and cannot be extended by the oxymoronic Bill. The rights enjoyed in this country by our citizens that are enforceable against other member states go. Rights whose geographical scope extends into other member states go. Rights whose enforcement requires the co-operation of other member states and the EU institutions go. We will need a new legislative rendezvous, and that is nothing to do with the great repeal Bill.

In my view it would make sense to improve the Bill before us to provide for that rendezvous in at least two respects. First, the Government have given us no undertaking that they will come back to Parliament if the negotiations threaten to break down. I rate the chances of breakdown at well over 30%. The White Paper is totally silent on the impending row about money and the bills we will be asked to settle as we leave. With respect to the noble Lord, Lord Lawson, no deal is much the worst deal. Walking away would mean recourse to law or arbitration, extended uncertainty about any continuing links with our largest and nearest trading partner and no legacy rights in its 50 agreements with third countries—a disaster for business and citizens alike. If the bravado of the White Paper proves hollow, the Government must come back to Parliament before the clock runs out.

Secondly, we need to consolidate in the Bill the Government’s quasi-commitment to give Parliament its say before the die is cast on any emerging settlement. The European Parliament’s similar right is enshrined in the language of Article 50. This Parliament deserves no less. It will not do just to give Parliament Hobson’s choice—to say, “It’s this deal or no deal”. Timing is crucial. Parliament must have the chance to consider at least three other options. Under option one, Westminster could follow the frequent practice of the United States Congress, say that it does not like the emerging deal or some particular aspect of it, and ask the Executive to go back and try harder. As one who has negotiated with two US Administrations, I say to the noble Lord, Lord Hill of Oareford, who thought that any such possibility would weaken the Government’s negotiating hand, that that is the exact opposite of the truth. Saying “I hear you but Congress would never wear it” is a negotiating weapon our American friends frequently use to great effect. I speak from experience.

As regards the second option, if timing proves tight, Westminster could invoke Article 50(3) and invite the Government to seek an extension of the two-year period. The European Union is a union of democracies. If this Parliament asked for an extension, and our Government conveyed our request, in my judgment it would certainly be given.

Under the third option, Parliament could invite the Government or the country to think again. An Article 50 notification is not irrevocable. The President of the European Council and a gallery of EU legal luminaries have confirmed—of course, the noble Lord, Lord Lester of Herne Hill, is among their number—that a member state may, in accordance with its constitutional requirements, withdraw its notification within the two-year period or its extension. This morning, the noble Baroness, Lady Symons of Vernham Dean, asked about the Government’s motive in conniving in the High Court at the fiction of irreversibility. I cannot answer her but the fact is that Article 50, which first saw the light of day under the heading “voluntary withdrawal” is not an expulsion procedure. We remain full members of the European Union throughout the negotiating period—the two years or its extension. If, having looked into the abyss, we were to change our minds about withdrawal, we certainly could and no one in Brussels could stop us. If it were not so, I would have to oppose the Bill. As it is, all we need do is improve it and make sure that the rendezvous with history, which comes when we know what the Government want for the future of our country and its relationship with our continent, is clear.

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.

Brexit: Article 50

Lord Kerr of Kinlochard Excerpts

Monday 7th November 2016 Lords Chamber

[Lord Bridges of Headley]

I hear what the noble and learned Lord says. I have made my position clear on this and I really do not have very much more to add.

[Lord Kerr of Kinlochard (CB)]

Can the Minister tell us when the Government intend to inform Parliament about the content that they would like to see in the framework for our future relationship with the European Union? The Minister will recognise that I am quoting from the language of clause 2 of Article 50. Also, when will we be told whether leaving the European Union will also mean leaving the EU customs union—a point of some importance to manufacturers with modern, just-in-time supply chains?

[Lord Bridges of Headley]

The noble Lord makes an extremely good point and speaks from considerable experience. We will be as open and transparent with Parliament and businesses as we possibly can, with the important caveat that I set out: we cannot and must not undermine our negotiating position and the national interest. As the noble Lord understands, we are looking at considerably complex issues right now. That is why we are looking at 51 sectors of the economy and at issues such as the supply chain. As I say, when we are in a position to do so we will be as open and transparent as we can be.