Northern Ireland Protocol Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to put a technical point. I am not sure of the answer—it is a genuine question—but it bears on the amendment. Trade is a reserved matter in Northern Ireland. When there was first sight of Theresa May’s protocol, there was great rage in Northern Ireland. People in Northern Ireland were told, “Sorry, this is a reserved matter.” Subsequently—it was the second iteration—it was very much the view of the noble Lord, Lord Frost, that that was not itself a satisfactory answer, and there is provision in the protocol negotiated by the Johnson Government. The one significant change is to make, in very specific circumstances, a role for the consent of the Northern Ireland Assembly. That is probably the major difference between the two protocols. However, if it is a reserved matter—if that was the answer that I remember being given throughout 2017 and 2018 in this House—I cannot quite see the purchase of these amendments.

If it is a reserved matter, it is a reserved matter. It is for this Parliament to deal with these trade matters. The burden of the Bill is in dealing with Articles 5 and 10 of the protocol—not those on human rights and so on—in a way which, I accept, many Members of this House do not like. None the less, it does not seem appropriate to be raising these issues now about that role for the Northern Ireland Assembly, because trade is a reserved matter held by this House.

The history of this is perfectly clear: the Government of Ireland Act 1920 has language on trade, as do the prior Acts of Union 1800. Then there were modifications to the Government of Ireland Act—benign modernisations, I would say—under the Good Friday agreement and the legislation that went through this House, which left us with trade as a reserved matter. It seems to me that this should be taken into account. There may be some possible answer to it, and the noble Lord, Lord Frost, has negotiated a possible way that one might work around it, but trade is a reserved matter at this point. We are not concerned with the human rights provisions of the protocol and so on; they are not the issue in the Bill. It is directed mainly against Articles 5 and 10, rightly or wrongly—wrongly, I am sure many colleagues on my own Benches think—but trade being a reserved matter is a problem for amendments of this sort.

[Lord Kerr of Kinlochard (CB)]

I agree that external trade is a reserved matter, but here we are talking about trade inside the United Kingdom—as well as trade inside the single market of the European Union, of course. I do not think it follows at all that one can say there is no role for the Assembly because external trade is a reserved matter.

I would love to support the amendment in the names of the two noble Baronesses. I agree with the spirit of it. It is extraordinary how, throughout this saga, things have been done to Northern Ireland without Northern Ireland being fully consulted or even informed. It is extraordinary, when you think about it, that the protocol was concluded without the involvement—I want to embarrass him now—of the noble Lord, Lord Caine, who knows far more about these issues than most of us do and has a judgment that we would all respect. That should have been brought to bear.

I hesitate to criticise the noble Lord, Lord Frost, who is busy with his emails, but, if he would like to listen, I will criticise him. It would have been good if he had found the ability to spend more time in Northern Ireland while he was negotiating. It would have been great if his master, the then Prime Minister, had been able to spend some time trying to understand the issues and seeing people on the ground, but it is an astonishing fact that Michel Barnier had more direct personal experience of Northern Ireland than the noble Lord, Lord Frost, had. That was because Barnier had spent time there doing jobs for previous presidents of the Commission.

I feel that the syndrome of imposing things on Northern Ireland, perhaps under cover of talk about reserved matters, which I disagree with, has been damaging to the United Kingdom and, of course, to Northern Ireland. I would love to support these amendments, and of course I would do so. But it would not make an illegal act less illegal if the Northern Ireland Assembly voted for it, so what are we talking about here?

I caused the Minister to look askance when I said that we are talking about a pig of a Bill. The Minister thought that was an indelicate reference. However, what we are doing here is trying to put lipstick on the pig. It will still be a pig even if this amendment is approved. If it were put to a vote, of course I would vote for it, but my general feeling is that we know what we have to do with this Bill. The noble Lord, Lord Cormack, has correctly pointed out that what we are engaged in now is a waste of time because I am confident that at the end of the day, we will do what we have to do to this Bill. I hope the end of the day comes soon.

[Lord Davies of Stamford (Lab)]

My Lords, for a number of years I was shadow Secretary of State for Northern Ireland. I have not been involved in recent political discussions in the Province. In a sense, I have come back to the subject afresh today. It certainly keeps all its fascination. We have just heard two immensely important contributions to the debate by the noble Lords, Lord Kerr and Lord Bew. The noble Lord, Lord Bew, dealt clearly, decisively and definitively with whether or not trade is a reserved matter. We must be grateful for that analysis, which I hope will guide us in dealing with this Bill.

The Bill is an extraordinarily unpopular document, is it not? It is quite difficult to find anybody really prepared to defend it. The DUP is obviously very much opposed to it. We have heard this afternoon from people who are close to the DUP’s leadership. The European Commission has launched infringement procedures in relation to the British Government’s activity over this Bill. The British Government do not seem to be very convinced of the virtues of the Bill. Certainly no one this afternoon has made a strong defence of the Bill.

Against that background, I rather agree with the noble Lord, Lord Cormack. It is quite unlikely that the DUP will do a U-turn; it would be a humiliating thing to do. Therefore, one must assume that the Bill in its present form does not have very far to go. That is not surprising because—and the reason I really oppose this Bill—it seems contrary to the essence of parliamentary democracy. The principle which underlines our whole system in this country is that the law must be made by the legislature—the legally elected representatives of the public. It is their responsibility to make laws; it is not the responsibility of the Government to make laws, nor is it desirable that they should try to do so.

Many of the provisions in this controversial protocol Bill reveal that there is an ambition for the Government to rewrite the law themselves. I look at the overview of the Bill in the very helpful summary produced by the Library. It says that one of the purposes is

“giving ministers delegated powers to make new provision in domestic law ‘in connection with’ ‘excluded provision’”;

in other words, the Bill declares itself as being in the business of making law and imposing it on the public, which is quite contrary to all democratic principles, and we should be quite upset about it.

This is something which has disfigured European history in the last 100 years. A number of people, from Mussolini to Hitler to Marshal Pétain, have adopted this course of deciding to get through an assembly, which would be reasonably compliant, a Bill entitling the Government to write the law themselves in the future. That is what happens to democracies if they are under that kind of attack. We should not in any way be party to that.

The House of Lords Library’s summary of the situation makes it clear that, in this case, the executive branch is deciding to write law and change international treaties more or less at the drop of a hat. That is obviously not something that anyone in this House could tolerate, and we should therefore think about this extremely carefully before it proceeds. We should make it absolutely clear that the Government cannot get away with asking for power in an enabling Act to simply write the future statute—not making this clear would be contrary to what we should do in this place.

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[Lord Bew (CB)]

My Lords, I am well aware of the sensitivity in this House regarding Henry VIII powers, and I respect that; it is a serious argument. However, Northern Ireland looks at these things from an angle that is not entirely the way the House of Lords looks at them. For one thing, there are what you might call Louis XIV powers all over the place in terms of European law and regulations, but there is silence about that.

The second issue, which has already been alluded to by the noble Lord, Lord Dodds, is that again and again, we have had the most dramatic demonstrations of Henry VIII powers in areas where I and other Members, a majority in your Lordships’ House, are in agreement—abortion laws and so on. We do it all the time. When we as a local assembly like it, when it is our kind of opinion, we have no problems. When we do not like what is proposed, we discover that this application of Henry VIII powers is intrinsically terrible. To be blunt, the House needs to avoid looking totally hypocritical on this point.

I feel that I have been living for a very long time with Article 16 and the potential illegality or otherwise of the Government’s legislation. When I first encountered it, in fact, it was Article 15 in Theresa May’s Bill; it was that long ago. I read and reread it until I was blue in the face. Let me say what the problem is in attempting to challenge the Government’s position. The best argument against the current position in the legislation is that Article 16 could be and should have been applied. At the moment, it is ridiculous. We are in the middle of a serious negotiation with the EU and it would break that up, so it is fatuous and politically absurd. Apart from the principle of reality, I can see why people want to argue that, but it is not going to happen now because the Government want this legislation with the EU to succeed. In the Financial Times as recently as September, the EU was defining the application of Article 16 as an outrage and so on. The situation would simply be aggravated.

The other weak point of this argument is that saying, “We want Article 16 but nothing else” is the sound of one hand clapping. None of those who have argued for it in this House since Second Reading has shown any grasp of the central difficulty of the relationship between the two treaties and their interaction. If you are going to argue, as distinguished international lawyers have done before both our Select Committees, that the Government have a case of sorts but Article 16 should be applied first, that is based on the idea that there is an interaction between the two treaties and this is the best way of acting to defend the Good Friday agreement. That is a perfectly respectable intellectual legal argument, but it just does not fit with the political moment we find ourselves in, with ongoing negotiations.

The sensitivity that people in this Chamber have about the attitudes and feelings of the EU is quite remarkable when they do not seem to feel it themselves; they feel that they are quite adult enough to get on with this negotiation anyway, regardless of the Bill. As I pointed out, the Irish Foreign Secretary said openly that they do not like the Bill but that is not a reason for not having the negotiations. Still, it is wonderful to see people stick up for other people’s rights and interests when they themselves do not seem quite so keen or worked up about the subject.

The main point is that just saying “Article 16” is simply one hand clapping. The only possible viable argument is to say—as indeed both the House of Commons and our own Select Committee have been told—that that is indeed the way you could use it to get a result. The best criticism of the Government is that you cannot really prove necessity unless you have gone down this route. It so happens that the Government are stuck in a moment of real politics, the real negotiation that is going on, so they cannot do it, but the majority of speakers in this House say, “I would like Article 16”. That is an amazing recent conversion to Article 16. A few months ago, most of us hated it and regarded even talking about it as a piece of British brutishness. Now we really love it because we prefer it to the Bill. Unless you add to that that you accept that there is a real problem with the interaction between this agreement and the Good Friday agreement, as the former Lord Chancellor said in the House of Commons, then, in the Chinese phrase, it is just one hand clapping.

[Lord Kerr of Kinlochard (CB)]

My Lords, the noble Lord, Lord Bew, raises a fascinating conundrum, but what he said about Article 16 was based on a misunderstanding of what the noble Lord, Lord Campbell, said earlier. I do not think I have met anybody in this House who believes that the right course of action, in abstract, is to use Article 16. The right course of action is to apply the treaty that we signed: that is what a lot of us believe. Clearly, there are others who take a different view. The point that the noble Lord, Lord Campbell, was making—which is clearly correct, and has been made several times by the noble Lord, Lord Pannick—was that there is Article 16. It exists. It is the designated route—the agreed route, the treaty route—to deal with a dispute about the implementation of the protocol. I am not saying that we should be using Article 16. I am saying that we should not be using another means and pretending that it is legal so to do while Article 16 exists. That seems to be the rub of it.

I will try to deal in an amateur way with the interesting questions from the noble Lord, Lord Lilley. I do not know the answer either, but one answer would be the Irish answer: “I wouldn’t be starting from here.” I am sure that the noble Lord agrees with me that if you read Clause 18(1) or Clause 22(1) and (2) of the Bill, the only question in your mind is: is this Lewis Carroll or is it Stalin? These are astonishing powers taken for the Minister, by regulation, to do whatever he likes, providing it is broadly to do with Northern Ireland. As the noble Lord, Lord Pannick, said, the reports that we have seen from three committees—but particularly the Delegated Powers Committee—are devastating. I cannot remember seeing in this House such strong language used in a unanimously agreed cross-party report.

The noble Lord, Lord Lilley, would agree with me that we do not want to be in this situation. There must be another solution. As a former negotiator, I would say that it is crucial to avoid putting the ball in your own net. Frankly, attempting this legislation while also attempting—or claiming to be attempting—to conduct negotiations, is absurd. Here I part company with my friend the noble Lord, Lord Frost, whose third argument today was exploded by the noble Lord, Lord Purvis. He said that it is necessary for negotiating reasons to advance this protocol; this is what will make the other side sit up and pay attention. You cannot argue both necessity and that. In my view, you would be mad to argue that, because on the other side of the table it is not a playground spat. On the other side of the table is a grown-up group of 27 countries that believe in the rule of law and are concerned that bad precedents should not be set. They cannot possibly concede that, because there is a blunderbuss on the table, they must give you what you are asking for in negotiations. They are not going to do that. Therefore, my answer to the conundrum of the noble Lord, Lord Lilley, is that it is a great mistake to legislate in these terms while you are negotiating. If Ministers are telling the truth about their wish to negotiate a solution to this, the last thing they should be doing is putting forward this Bill.

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[Lord Kerr of Kinlochard (CB)]

I yield to none in my respect for the noble Lord, Lord McCrea, and the way he pursues this argument. It was an argument that we had earlier in our debate, and I share his distaste for the protocol, as he knows. I do not agree with the noble Lord, Lord Hannan, that there is no democratic deficit. I think there is a real democratic deficit and it could be put right. It would be good if the noble Lord would think about the suggestions made by the noble Lord, Lord Hain, earlier in our debate. The argument that the protocol is inconsistent with the Good Friday agreement comes across rather badly from those who opposed the Good Friday agreement. I myself was strongly in favour of the Good Friday agreement and I was sorry to see the DUP against it at the time. It is hard to sustain the argument now, in any case, given that all the parties to the withdrawal agreement—in which the protocol rests—do not agree with it. The United Kingdom Government do not buy the argument that the DUP are making—or they have always, up to now, not bought that argument. Although I understand the concerns the noble Lord puts forward, I do not think it works as a matter of law or that the Gibraltar precedent—although he is quite right about it—is relevant.

[Lord Hain (Lab)]

Will the noble Lord accept a small intervention to follow up on the point he made about the democratic deficit? I agree with him and he agrees with me on it. Would he confirm that Norway, for example, does not have Ministers in the Council of Ministers or direct representation in the European Parliament because it is not in the European Union, but does have consultative rights? It is consulted on all EU single market matters. Northern Ireland could be consulted in a similar way.

[Lord Kerr of Kinlochard (CB)]

I so confirm.

[The Earl of Kinnoull (CB)]

My Lords, I ask the Minister a more technical question about the interrelationship between the trade and co-operation agreement and the withdrawal agreement. The European Affairs Committee spent a very long time writing a report, which came out last December, about trading goods. We were very careful to make sure that we did not talk about the Northern Irish situation for two reasons. First, we have our own sub-committee for dealing with that. Secondly, it was horribly complicated.

I should like some comfort on a problem that would arise should some kind of good head from Great Britain to Northern Ireland. For the purposes of the Minister’s powers, it is a Northern Ireland good. However, it is, at the same time, latently a TCA good for the purposes of moving across an EU border. An immediate set of complications arises from this. I would, therefore, be grateful for the Minister’s thoughts on what the interrelationship is between the TCA and the withdrawal agreement on goods in general. I would also be grateful for some comfort that when Ministers are thinking about exercising all the powers that this selection of clauses would give them, they will have do so in regard to all the relevant various international agreements we have. The TCA is not our only agreement with the EU.

Pakistan: Flood Relief

Lord Kerr of Kinlochard Excerpts

Wednesday 7th September 2022 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend is correct: we need to make sure that we leverage all levers. I have mentioned the United Nations, and the Commonwealth is of course a very important institution. Some of Pakistan’s near neighbours are members of the Commonwealth and have stood up support. Other members of the Commonwealth which are part of the industrialised nations have also lined up support. What is important, as I have said to the Pakistanis, is a detailed assessment of exactly what is required. That is why, with the DEC standing up its funding requirements, the immediate need is to ensure that funding can be allocated to the specific priorities. I will be speaking to other Commonwealth members as well as the wider UN family to ensure that Pakistan’s needs are met not just for the short term but the medium and long term.

[Lord Kerr of Kinlochard (CB)]

Given the scale of this disaster and our many links to Pakistan, is it very good that the Disasters Emergency Committee is running an appeal. I commend the Government for agreeing to match the funds raised by the appeal. However, when I last looked, the Government had put a ceiling of £5 million on the extent to which they would match-fund. Given the scale of the tragedy, that seems a very low ceiling. I hope that the Government will be ready to raise it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I said earlier, we are making assessments, and I hear what the noble Lord has said about the current £5 million ceiling. According to my most recent figures, the DEC fund has already raised in excess of £16 million, which includes our match funding. Of course, as we look at Pakistan’s priorities, the Foreign Secretary and I will certainly be considering what else we can give priority to, including further DEC funding support.

Working Practices (International Agreements Committee Report)

Lord Kerr of Kinlochard Excerpts

Thursday 19th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I congratulate the noble Lord on his excellent concluding question. I am a member of the International Agreements Committee and should start by paying tribute to our chairman, the noble Baroness, Lady Hayter, and her predecessor, the noble and learned Lord, Lord Goldsmith, for their work on this dossier, with the very considerable help of our former legal adviser, Alex Horne, and our clerk. The exercise of working practices, though I dreaded it, is being well done by the committee and I congratulate the chairman.

I also think that the noble Lord, Lord Oates, is a little hard on the chairman’s achievement in securing today’s exchange of letters with the noble Lord, Lord Grimstone, which settles the issue about which the right reverend Prelate was concerned. I agree that it does not go as far as we would have liked, but it is well worth having. It is good to see the relationship between the committee and the Department for International Trade placed on a more solid foundation, so I genuinely congratulate the chairman.

As the prisoner at the bar says, I need to confess to some previous convictions. I was a Sir Humphrey in my time—a Foreign Office Sir Humphrey—so I am now a poacher where once I was a gamekeeper. In the Foreign Office, I was responsible for a time for the operation of the Ponsonby rule. Ponsonby, 98 years ago, committed the Foreign Office to enable Parliament to exercise supervision of agreements, commitments and undertakings involving international obligations of a serious character, even if they were not given treaty form. In my time, which was a little less than 98 years ago, we were still honouring that rule. Occasionally, it led to disputes in-house as to whether we needed to put an agreement forward. Occasionally, it led to serious discussions about whether security considerations were involved. However, it was being honoured in my time in Whitehall and therefore, like the noble Baroness, Lady Hayter, I was very surprised to hear it asserted at the Dispatch Box a few weeks back that the Ponsonby rule had been overtaken by the CRaG Act.

As we know, CRaG covers treaties, but Ponsonby also covers non-treaties. I am sure that while this House was considering the CRaG Bill it was never suggested that, if we passed it, we would, in doing so, kill off Ponsonby. That was not suggested at the time. I do not think we killed off Ponsonby. I do not think we should. The worrying thing is that the Government are now acting as if we did, and I am pretty sure they should not.

People have mentioned the sort of non-treaty agreements which ought to be drawn to the attention of Parliament. They gave examples such as the Rwanda agreement, which in my view represented a breach of the refugee convention. They mentioned the agreements with Sweden and Finland on defence. I do not know precisely what they say. I do not know what form they took, but it does not really matter; it seems our word has been pledged. That may be a good thing—I personally think it is—but Parliament ought to be aware, and these texts have not been laid before Parliament because they were not treaties and the Government’s interpretation is that if CRaG does not apply, then they do not need to do anything. I would also mention the defence agreement with Australia and the United States. I do not know what it says, but it sounds pretty binding and I would have thought it ought to be laid before Parliament. These examples are all considerably more significant than the many trade treaties which the Department for International Trade is laying before Parliament and which the International Agreements Committee is trying to scrutinise.

That is why the report suggested, at paragraphs 82 and 83, what we should do about non-treaties. That is why I was so surprised at the letter, which has been referred to today, received last week from the FCDO Minister of State, Amanda Milling. I am torn about this letter, because as a former Sir Humphrey, I think it is fabulous. It is a masterpiece of elegant, obscurantist obstructionism, with just the slightest dash of the otiose—marvellous. To quote her:

“The Government does not accept that there has ever been a constitutional convention in the UK whereby non-legally binding arrangements are routinely published or submitted to parliamentary scrutiny.”


Did noble Lords see what she did there? Did they spot the “routinely”? We never said that non-legally binding arrangements were “routinely published”. They never were; Ponsonby never said they would be.

There is a mass of documents exchanged between our Government, our ministries our embassies and other Governments, including exchanges of letters, memoranda of understanding and agreed minutes. That is the currency of daily diplomatic exchange. I recall as an ambassador status of forces agreements and their amendment for different exercises, and privileges and immunities for premises or people—all this stuff that takes some documentary form. But it would never be the committee’s intention that the Government should be required to submit such material for parliamentary scrutiny. Some of it was barely scrutinised by Ministers in my time. I was even allowed to sign off some of it myself because it was so trivial.

Paragraph 82 of our report says:

“We accept that it … would be disproportionate, to notify us of every Memorandum of Understanding that the Government enters into. However, there are some significant agreements which should be notified and sent to us for review”.


That is the essence of our proposal. The Sir Humphrey who drafted the Milling sentence that I read out was creating a straw man—a red herring. The sentence is perfectly correct, and it is totally misleading and irrelevant. That is the mark of the maestro.

The letter goes on to say:

“The Government has acknowledged that it may be appropriate to draw to Parliament’s attention non-legally binding arrangements which raise questions of public importance. Ministers consider this on a case-by-case basis.”


Ah, quite—and so they should. But hang on, what are the criteria they are using as they consider this case by case? That is why our report suggested a set of criteria:

“Notification and deposit should be required only if an agreement … is politically or economically important … imposes material obligations on UK citizens or residents … has human rights implications … is directly related to a treaty; or … would give rise to significant expenditure.”


If the Government do not like our principles, we will change them or have some more—but they have to reply. They have to tell us what their proposed criteria are. Then we can start a negotiation and engage on this. That is what this is all about. They cannot just say, “No, no—we’ll do it case by case.” That is a non-answer, although Sir Humphrey would have been extremely proud of it.

I think Sir Humphrey might also have been quite pleased with the following sentence, which is the last thing I will quote, I promise:

“The relevant factors in deciding whether and how to draw a non-legally binding arrangement to the attention of Parliament will vary according to the arrangement in question, and may include—but are not limited to—human rights considerations.”


I repeat: “may include, but are not limited to”—masterly. I am proud of my old department.

Being serious for a moment, I do not think this will quite do. I really do not. I think we are entitled to ask the Executive to engage. It is in all our interests to reach a sensible understanding here, as we have with the Department for International Trade. We did not get all we wanted with that department, but we now have a clear basis on which to go forward, whereas all we have from the Foreign Office is this refusal to meet us and the rejection of our criteria, rejection of the concept of criteria and refusal to start a discussion. I really do not think that will do. Parliament has powers in matters of this kind, but it would be infinitely preferable not to have to exercise them. We owe it to the Minister, just as we owe it to ourselves, to ask him to go back to the Foreign Office and ask it to have another look at this issue.

Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Wednesday 18th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The Queen’s Speech said that we

“will lead the way in championing security around the world.”

In “Yes Minister”, the Permanent Secretary would have said, “Very bold, Minister”. It is quite a bold assertion. We used to be good at understatement. Conservative Foreign Secretaries such as Alec Douglas-Home, Peter Carrington, Geoffrey Howe and Douglas Hurd tended to speak rather softly, although they still carried quite a big stick. They tended to get their way. The stick is now a little smaller, as the noble Baroness, Lady Davidson, convincingly reminded us, but we seem to be shouting rather loudly and not getting our way quite so often.

I want us to be trusted. Trust is quite a good thing to have. I want people to believe that, if they conclude a deal with us, that deal is likely to stick. This makes it easier to conclude a deal. I would like people to think it unthinkable that we would break a treaty commitment and start a trade war. I must say to the noble Lord, Lord Frost—I am sorry he is not here to hear it—that this House still champions the rule of law. I think we showed that during the passage of the then internal market Bill and, if we have to, we will show it again in connection with a Brexit Bill.

The Queen’s Speech does not say anything at all about development; the noble Lord, Lord Collins, was absolutely right to pick that up. The slick brochure published by the Foreign Office this week is unconvincing and alarming. It is alarming because it is clear that we are switching aid away from multilateral to bilateral, back to more tied aid. We will give less support to the international agencies fighting the causes of global insecurity, such as famine, disease, unrest and mass migration. Three out of every four cross-channel migrants and refugees come from a country fighting severe famine right now, but it seems from the Foreign Office publication that we plan to cut back on what we do to stem the flow at source—although, of course, the Queen’s Speech said that we will be hard on refugees. Apart from the moral imperative, is it not in our self-interest to do more, not less, through the multilateral agencies?

The noble Lord, Lord King, was absolutely right—as he usually is—in pointing to the imminence of the global famine. It is here already, but it is going to get much worse. Before Putin’s invasion, 80% of Egypt’s wheat came from the Black Sea; 75% of Sudan’s; 75% of Lebanon’s; 50% of Libya’s; and 50% of Tunisia’s. Global stocks were already at their lowest for seven years. The World Food Programme was already telling us that we were facing an unprecedented global hunger crisis before Putin’s invasion. As the noble Lord, Lord King, pointed out, protectionism in India and Indonesia —export bans—means that it is not just wheat that will be in very short supply in the Middle East. There are 9 million people in Tigray who are starving right now. The WFP says that there will be 20 million in Sudan within three months.

Should we not be urgently doing more, not less, for the WFP, the FAO, the UNDP, the UNHCR and the WHO? The WHO says that Covid has already killed 6 million and is still killing 1,000 a day. Those are probably underestimates, because the statistics are patchy. Some 75% of us are fully vaccinated, but only 23% are in Uganda, 19% in Ghana, 6% in Tanzania and 5% in Malawi. These disparities shame and threaten us. Do we not owe it to our Commonwealth friends and to ourselves to do more to help them do better?

It is not just them. In tragic, war-torn, blockaded Yemen, only 1% of the population has been vaccinated at all. Are we using our undoubted influence in Riyadh to persuade the Saudis that lives must be saved in the Yemen? I hope so, but I do not know.

The key global responder is the WHO. Some 80% of its finance comes from voluntary national contributions. Are we up there as global leaders showing the way? No, we are way down the pack. Up at the top are Germany and Japan; we are down with New Zealand. Global Australia contributes more than global Britain; the Gates Foundation contributes more than global Britain. Should we not put that right? It is a global pandemic and, if we aspire to be champions of global security and lead the way, should we not be doing something about global insecurity and its root causes?

My last point harkens back to my first. When working in Washington and Brussels, I was lucky enough to witness a virtuous circle: the more the White House trusted us, particularly because of our policies on Northern Ireland through John Major and Tony Blair, the more our perceived influence in Washington strengthened our hand in Brussels—and the more we were seen to deliver on common purposes with our friends in Europe, the more the White House listened to us. I worry about the very real risk of a vicious circle, which works the other way. Picking fights with the 27, particularly over Northern Ireland, is the best way of losing friends in Washington. The more we drift away from both Europe and America—

[Viscount Younger of Leckie (Con)]

My Lords, it is a very long last point and I do urge the noble Lord to conclude.

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[Lord Kerr of Kinlochard (CB)]

It is a very important last point. The more we drift away from both sides of the Atlantic, the emptier our talk of leading the way. Effective foreign relations are built on trust, perceived honesty and reliability, so it is important that deals that are done stay done deals. No one ever doubted the word of Home, Carrington, Howe or Hurd: pacta sunt servanda.

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[Lord Lilley (Con)]

My Lords, on the “Today” programme on Radio 4 on Friday the Irish Foreign Minister, Simon Coveney, asserted that “the EU cannot and will not renegotiate the Northern Ireland protocol”. In fact the EU can, should and must renegotiate it. It can renegotiate because any treaty can be renegotiated, and many are. It should renegotiate it because the sole justification of the protocol was to uphold the Belfast agreement, and the first article is that nothing in the protocol shall prejudice the Good Friday/Belfast agreement. As the former Solicitor-General, Sir Robert Buckland, said yesterday,

“that means … that the … agreement takes primacy over the protocol”,—[Official Report, Commons, 17/5/22; col. 554.]

so the British Government, as co-guarantor of the agreement, have a duty to renegotiate the elements of it which are undermining the Belfast agreement.

The main point I want to make in the five minutes that I have is that the EU must renegotiate the protocol. It must because, legally, the protocol is not a permanent arrangement: it must eventually be replaced or it will lapse. That is not my opinion or the Government’s opinion; it was the whole basis on which the EU negotiated the withdrawal agreement: that, under Article 50, it did not have the competence to negotiate a permanent trade and co-operation agreement with a member state. Article 50 allowed it only to negotiate the divorce terms and temporary or transitional arrangements to smooth the departure of a member state. It said that a permanent trade relationship could be agreed under Article 218 only with a non-member state. That is why the EU refused Mrs May’s request to negotiate the trade and co-operation agreement in parallel with the withdrawal agreement. The UK had first to leave the EU, agree to sign the withdrawal agreement and become a non-member state before negotiations on a permanent trade and co-operation agreement could even begin, so how come there was a trade and co-operation agreement covering Northern Ireland?

The Northern Ireland protocol could be agreed under Article 50 only because and so long as it was temporary; it was needed to smooth departure, not least because there was no certainty that a permanent trade and co-operation agreement between the UK and the EU would be in place by the time we left the EU. That should not be news to us because the former Attorney-General Geoffrey Cox explained to the House of Commons that,

“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states”. —[Official Report, Commons, 3/12/18; col. 547.]

He went on to say that, if traders in future felt disadvantaged by the protocol, they should

“beat a path to the door of the Commission and the Court … to say, ‘Didn’t you say that article 50 is not a sound legal foundation for this arrangement?’ And I tell you frankly, Mr Speaker, they are likely to win.”—[Official Report, Commons, 3/12/18; col. 555.]

The original protocol itself spelled out that

“the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom”.

That is equally true of the protocol in the final withdrawal Act, since it, too, is based on Article 50. Paragraph 8 of Article 13 of the protocol itself specifically envisages the replacement of all or parts of the protocol by a subsequent agreement. Nor does the provision in the final protocol for approval or rejection by the Northern Ireland Assembly alter the issue; even if the Assembly were to endorse the arrangements set down under the protocol, which was an agreement between the EU and the whole UK, not just Northern Ireland itself, that would not change its transitional nature.

The temporary nature of the protocol is a matter of EU law. I am puzzled that its author never remembers that nowadays. He and all the other spokesmen of the European Union in this House suffer from a selective memory and treat this protocol as if it is to be permanent and cannot and should not be changed, even if undermines the Belfast agreement, which was the very purpose of that protocol. Of course, I give way to the noble Lord, my former good friend.

[Lord Kerr of Kinlochard (CB)]

It is just possible that the noble Lord is confusing two versions of the protocol —the one negotiated by the previous Prime Minister and the one negotiated by the present Prime Minister. The previous Prime Minister’s protocol was, on the face of it, clear, straightforward and temporary. The present Prime Minister’s protocol is permanent.

[Lord Lilley (Con)]

The transitory nature of both protocols arises from Article 50, which the noble Lord himself wrote—and if he wishes to repudiate that and say that Article 50 does not mean what the European Union says that it means, that would be an interesting thing to do. If the European Union were now to change its view and say, “We were conning you and having you on when we said that we couldn’t negotiate a permanent arrangement under Article 50”, it would show that the original treaty was based on negotiations in bad faith, and that would give us a basis to seek renegotiation.

More positively, we should look to the EU to negotiate and renegotiate with the same spirit and the same objective that it did the original protocol: to uphold the Belfast/Good Friday agreement in all its parts. I welcome the fact that the British Government are moving forward on that basis.

Universal Credit (EAC Report)

Lord Kerr of Kinlochard Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Kerr of Kinlochard (CB)]

We are debating an excellent report, like all the reports produced by the Economic Affairs Committee under the dynamic and effective chairmanship of the noble Lord, Lord Forsyth of Drumlean. I find that very annoying, because I was a member of his committee and, after leaving, have detected no falling off at all in the quality of the reports it has produced. I have to tell the noble Lord, Lord Forsyth, that, knowing how dynamic and effective the noble Lord, Lord Bridges, is, I do not expect to see much falling off in the quality of the reports now, either.

The sad thing about this report is that it has not been overtaken, although it came out in July 2020. There is an extra dimension of sadness for me in that something is missing that could not be there, because it was written in July 2020, before the energy price spikes started. As the noble Lord, Lord Bridges, said, the energy price cap will go up by 54% next week. That is based on the increase in wholesale energy prices last autumn. We are now in the next reference period, which will determine the increase in October. At present, we are in for a rather larger increase. It looks as if the average household price, which is teetering at nearly £2,000 now, will go up to over £3,000, with another increase of 55% or 60% in the autumn.

We all know what a big component of household expenditure heating and lighting is for the less well off. Is it beyond the wit of man, or the wit of the department, to consider indexing universal credit, or an element of it, to the price of heating and lighting? Next winter could be an extraordinarily bad one for anybody on universal credit, for all the reasons that were set out in the report and discussed in the Chamber today, but with the additional reason, perhaps bigger than most of them, that the price of heating and lighting will be very much higher.

Afghanistan (International Relations and Defence Committee Report)

Lord Kerr of Kinlochard Excerpts

Monday 24th January 2022 Grand Committee

[Lord Kerr of Kinlochard (CB)]

It is never a pleasure to follow the noble Lord, Lord Boateng, because he shoots one’s foxes with such style. He has just shot four of my foxes so please see what I say as a series of footnotes to his very good speech.

I join the Committee’s unanimity in finding the delay in handling this excellent report absurd. However, the timing is fortuitously convenient because it enables us to ask the Minister to tell us about the weekend meetings in Norway, the Government’s response to Gordon Brown’s weekend appeal and the Government’s answer to what is clearly the number one priority issue: how to stop millions of people starving in Afghanistan this winter.

The report points out:

“Afghanistan is the most aid-dependent country in the world”—


it is talking about the 2020 numbers—with 60% of its budget funded from outside by the international community. Then,

“‘10.9 million people faced “crisis” … levels of hunger’”;

I quote the remarkable report of the noble Baroness, Lady Anelay. The world pledged $3.3 billion of aid for 2021; not all of it got through because of what happened in the summer of 2021. However, the need is much greater now. By December 2021, the UN was estimating that 23 million refugees—more than 50% of the population—faced acute malnutrition. We cannot let this happen. The West won the war, but we must not let our defeat trigger an Afghan apocalypse.

That means recognising reality. It means putting our pride in our pocket and working with the Taliban Government. But without outside budgetary support, they could not, as the report says, maintain basic state services. Yet, as I understand it, all our humanitarian aid now is going via UN agencies and NGOs, and none of it is going to or through the Government in Kabul. What does that mean for public health, education, power supply, transport and the distribution of the desperately needed food? When states fail, it is the poor who suffer. We must not fail the Afghans a second time. The Government in Kabul must be allowed access to the Afghan Government funds held abroad. I am afraid that we really must not let our well-founded concerns about the Taliban’s human rights performance mean that we end up denying the Afghans the most basic of human rights: the right to stay alive, the right to have something to eat.

I never understood why Foreign Secretary Hague derecognised the Assad Government in Syria 10 years ago. Recognition does not imply approval. Recognition provides a basis for doing business. Recognition makes it easier—much easier—and more efficient to do what we need to do now in Afghanistan. We were the first of the great powers to recognise the Bolshevik Government in Petrograd 98 years ago. We have an embassy in Pyongyang; I know, I opened it. We have to face facts, however unpalatable: the Taliban are in charge and we have to do business with them. If we are going to help Afghans, we have to recognise the authority of the Taliban Government now in Kabul.

I would like to make two more points. Unfortunately, they were both made much better than I am able to by the noble Lord, Lord Boateng, but I trade on the Committee’s patience. To ensure that our defeat does not also carry dishonour, we have to deliver on the promises we made to the Afghans—the ones who came here and those we said could come here. In August, as Kabul fell, the Prime Minister said:

“In addition to those Afghans with whom we have worked directly … we are committing to relocating another 5,000 Afghans this year”.—[Official Report, Commons, 18/8/21; col. 1260.]


We also then said, separately, that we would take another 20,000 in “the coming years”—variously four or five years; it was not clear at the time.

But this month the Government have announced that the first tranche of the 20,000 are in fact those brought out in August. In December they revealed that the Prime Minister’s additional 5,000 similarly have been subsumed into the 20,000. In short, it rather looks as though we are now interpreting our commitment—the Prime Minister’s word—as restrictively as possible. It seems that few, if any, new refugees will be let in during this calendar year. I find that rather disappointing and I hope the Minister will comment on it.

In the first place, 20,000 over four or five years is not particularly generous. Canada is taking 35,000 this calendar year and, since 20 August, some 300,000 Afghans have crossed the mountains from Afghanistan into Pakistan to join the 3 million already shivering in the camps round Peshawar. Are we sure that our response to this massive tragedy matches its scale? I am not.

Nor, despite all the fine talk of Operation Warm Welcome, are we treating those who got here in August with conspicuous generosity; again, my fox here was shot by the noble Lord, Lord Boateng. These people are plainly refugees in any reasonable understanding of the word, but they are not being treated as such. They have not been allowed refugee status. Instead, they have been given leave to remain for six months and, five months on, many still have heard no more. Those whose position has been regularised have been given indefinite leave to remain. That does not carry the rights that come with refugee status, such as the right to family reunion. The majority, of course, are still living in temporary accommodation in hotels; as of today, the number is 84. They are unable to work. Their children are not in school. They are still in the dark about where in the United Kingdom they will eventually be settled. That does not come across as a particularly warm welcome. We could, and should, have done better; indeed, we still must. I hope that the Minister will be able to say something about that too.

However, the number one priority must be to make sure that as many of those left behind in Afghanistan as possible survive the Afghan winter. That means accelerated and enhanced international action urgently, as Gordon Brown said this weekend. It also means recognising reality and recognising the Taliban. The crisis unfolding right now is partly of our making because it springs from our policy failures and defeat. We must not just shrug our shoulders and walk away.

Integrated Review of Security, Defence, Development and Foreign Policy

Lord Kerr of Kinlochard Excerpts

Thursday 22nd April 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB) [V]]

My Lords, I am very glad that the noble Baroness, Lady Armstrong, said what she said about Frank Judd. I associate myself with it and add only that he was an excellent Minister for Defence and Development and in the Foreign Office, and always a genuinely good man.

Foreign friends are relieved that the Government’s puzzling new definition of sovereignty, which has obliged us at such considerable cost to sever economic, commercial and social ties with our European neighbours, apparently does not extend to NATO or United Nations obligations, or to the rules-based international order. The review shows that rules are okay provided they are not European, which is still a bit puzzling but good news. I welcome the linkage of domestic and international aspects of security and the new emphasis on a whole-of-society approach to resilience.

However, I find the hubris grating and mourn the death of British self-deprecation. I recall Lord Carrington’s reaction when Helmut Schmidt, his German Defence Secretary counterpart, told him that what made the UK crucial to European security was not so much 55,000 combat-ready troops forward-based in Germany, but German certainty that we could be trusted; if the balloon went up, the Brits would be there, and there was German certainty that Moscow knew that too. Back then, we did not shout about it. We carried a much bigger stick than we now do, but we spoke much more softly and carried more conviction.

Does President Putin, with his troops massing against the Donbass, pause to ponder how we might act on our 1994 commitment to the Ukraine’s security? I doubt it. Does President Xi, as he contemplates Taiwan, worry about our carrier deployment? I doubt it. A rather small gorilla beating its chest risks looking a little ludicrous. The Carringtons and Heaths, the Callaghans and Healeys—the generation who knew war and understood security—would not have been quite so hubristic. Of course, they would have agreed that it makes sense to subordinate national sovereignty to allied solidarity, and autarchy to mutually agreed rules, but they would have warned that what matters most is to retain a reputation for reliability. The noble Lord, Lord Purvis, is right that brutal 50% cuts to bilateral aid hurt us as well as the world’s poorest, and we surely shock the world by passing a law to break international law and tear up a newly minted treaty, gravely damaging global Britain.

One cannot rebuild a reputation by shouting about what one intends. Actions speak louder than words. We must see ourselves as others see us, remember Helmut Schmidt’s tribute, and seek to rebuild trust. The fine words of the review cannot do that for us. Only our actions can.

NATO: Russia and Ukraine

Lord Kerr of Kinlochard Excerpts

Thursday 15th April 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB) [V]]

The Minister will recall that Sir John Major and Lord Hurd of Westwell were the west European signatories of the 1994 Budapest memorandum. Do the Government agree that this gives us a continuing responsibility for the security and territorial integrity of Ukraine? If so, how do the Government intend to discharge it? The United States has a similar responsibility as a signatory, and the Minister will have noted that President Biden believes that now is the time for dialogue with both President Zelensky and President Putin.

[Lord Ahmad of Wimbledon (Con)]

My Lords, we stand by our commitment to the convention that was signed and are fully supportive of the efforts in the defence of Ukraine and its sovereignty and integrity.

Official Development Assistance

Lord Kerr of Kinlochard Excerpts

Wednesday 2nd December 2020 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, my noble friend raises an important point with which I totally agree—and I am sure that many other noble Lords would also agree—regarding the important role that our Armed Forces play in bringing about and sustaining peace and in ensuring humanitarian corridors. The increase in spending that we have seen in other areas—including in the MoD budget—testifies to the important role of the military when it comes to peacekeeping operations and sustaining humanitarian corridors. We can all be proud of the role that our military plays in delivering support to the most vulnerable communities around the world.

[Lord Kerr of Kinlochard (CB) [V]]

My Lords, a detected lie is the clock striking 13: it is wrong and it casts doubt on all past and future chimes. In June, the Prime Minister formally renewed the 0.7% commitment on the record in the other place. I was reassured, but it turns out that I was deceived. The aid community around the world was reassured, but it turns out that they were deceived. I suspect that the noble Baroness, Lady Sugg, was deceived: she was an excellent Minister and will be much missed. The cut to our aid projects now is 30%; the cut to our credibility is much greater. I ask the Minister: why do we lie?

[Lord Ahmad of Wimbledon (Con)]

My Lords, as I said earlier, we are proud of our commitment to 0.7%; it was a Conservative-led Government who brought that into legislation. I can assure him that we made this decision after very careful consideration. We needed a temporary reduction in order to meet the unprecedented challenges that we face in terms of both health and the economy. I reassure him, however, that our intention is to return to 0.7%.

Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Tuesday 15th October 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is always a pleasure to follow the noble Lord. I was not planning to speak about Brexit at all today, on the grounds that my views on Brexit are very well known to the House, and I rather suspect that whatever I say today will not greatly affect the negotiation in Brussels—although I am sure they are following our debate intently.

The third reason I was against speaking about Brexit is because I am sure that we will have plenty of time. It is impossible that by 31 October there will be a completed treaty ready for ratification by the two Parliaments: this Parliament and the European Parliament. It is also, in my view, inconceivable that our Government will have acted illegally and against the Benn Act. It follows that will we have plenty of time.

I want to talk about foreign affairs. I am, however, tempted by the noble Lord, Lord Grocott, and invited by the noble and learned Lord, Lord Mackay, so I will touch lightly on Brexit at the end. Your Lordships may leave before the end.

On foreign policy, I am struck by the tone and the content of the Speech. Of course, it says very little about foreign policy and of course that is wholly understandable because this is not a legislative programme or a programme for a Parliament; this is an election manifesto, and elections are not usually won on foreign policy, so of course there is not much there. What is there, however, is much less than is traditionally there.

I have been thinking about why, and I would like to go back into history a bit. In April 1991, John Major persuaded the European Council, meeting in Luxembourg, to declare a safe haven in Kurdistan. The Kurds were then under attack by Saddam Hussein and hundreds of thousands of them were fleeing into the mountains. It was a major humanitarian disaster. John Major persuaded the European Union that it should not stand idly by and that we would be prepared to send forces. The United States did not react. John Major spoke to the President of the United States. Three days later the United States came on board the initiative. US, British, Australian, French, Spanish and Italian forces went in, and the RAF flew in the skies, as did the US Air Force. Some 450,000 Kurds returned to their homes within three months. The operation was a remarkable success.

What is happening today? The General Affairs Council met in Luxembourg yesterday. Did the Foreign Secretary come up with an initiative? Well, actually, he did not go. He sent Dr Andrew Murrison, who is, I understand, a junior Minister in the Foreign Office. I have seen no reports of what he said. At the General Affairs Council, Foreign Ministers listened to the Foreign Minister of Ukraine talking about the continuing occupation and civil war in part of his country, fomented and funded by Moscow. I have seen no reports of what Dr Murrison said to him. Some in Ukraine remember the Budapest Memorandum of 1994, drafted by the British and agreed by John Major with his Russian, American and Ukrainian counterparts. In exchange for the Ukrainians giving up their nuclear weapons, we guaranteed the territorial integrity and political independence of Ukraine. Some in Ukraine remember that now. The negotiations, such as they are, over Ukraine’s future now take place in what is known as the Normandy format. We are not a party to it. The negotiations on our side are led by Chancellor Merkel, with President Macron. I find this rather shaming. We have excluded ourselves.

Then we read in the Speech that,

“my Government will ensure that it continues to play a leading role in global affairs, defending its interests and promoting its values … My Government will be at the forefront of efforts to solve the most complex international security issues. It will champion global free trade and work alongside international partners to solve the most pressing global challenges”.

I am not sure we are playing a leading role. I am not sure how we could ensure that we continued to do so unless we changed our views.

On Hong Kong, I very much agree with what the Foreign Secretary said in the other place on 26 September:

“Hong Kong’s high degree of autonomy is what guarantees its future prosperity and success”.—[Official Report, Commons, 26/9/19; col. 864.]


But in Hong Kong they are saying: what are the UK signatories of the 1984 joint declaration doing—as distinct from saying—to help preserve that autonomy? Are we playing a leading role? Hardly.

“Time hath, my lord, a wallet at his back,

Wherein he puts alms for oblivion …

Those scraps are good deeds past

… perseverance, dear my lord,

Keeps honour bright”.

How persevering are we now and how persevering can we be, despite the hubris of this Speech, as the twin pillars of our foreign policy crumble?

We say that we will champion free trade, but the greatest challenge to the global trading system is President Trump’s attack on the WTO and his belief that trade wars are good and easy to win. We say that we will be at the forefront of efforts to solve the most complex international security issues, but what are we doing to stop President Trump’s dismantling of the international arms control architecture which his predecessors—mainly his Republican Party predecessors—built? What are we doing to persuade him that alliances are not transactional but based on trust, and that NATO still matters to all of us, including America? Or that concerted action against global warming is not a conspiracy against America, but deserves American support? Or that help to Ukraine should not be held hostage to digging dirt on a political rival? Or that the Kurds should not be betrayed—or, come to that, that the Turks should not be totally destroyed and obliterated, according to the whim of his “great and unmatched wisdom”, to cite his weekend tweet? Of course, our apparent inability to influence a capricious White House may not be for want of trying—heroic efforts may be being made behind the scenes—but I wonder whether they are enough:

“perseverance, dear my lord,

Keeps honour bright”.

On 13 November 2016—just after the presidential election, President Trump’s victory—European Foreign Ministers met informally at an extra meeting to discuss the likely foreign policy consequences of the election. They thought them potentially serious. Our Foreign Secretary, Mr Johnson, chose not to go and denounced the meeting in public as a “collective whingearama”. Why? Perhaps he thought—wrongly, as it has turned out—that his colleagues’ worries were unnecessary, in which case, it should have been his duty to attend the meeting to persuade them of that. Perhaps he thought that deliberate distancing from continental Europe would bring future rewards in Washington. Perhaps it was the mirage of a generous free trade agreement with mercantilist Mr Trump. If so, it was a serious misjudgment. Whatever the reason, the fact is that we cut less ice in Washington today than at any time since Suez.

So too in Europe, where deliberate distancing from continental partners continues. We now have a senior adviser in No. 10 who feels licensed to tell the 27 that if they do not give us the Brexit terms we need we shall withdraw defence and security co-operation. That is an extraordinary statement. We boycotted the September General Affairs Council. We do not know what Mr Murrison said this week about the Kurds or Ukraine, but I do not think he put forward any initiatives. Are we really playing the leading role that the Speech tells us that we do?

Of course, a continuing aspiration towards a leading role in global affairs, even if we are not up for it, is perhaps a good thing, but ambition has to be matched by ability. We have chosen not to be centre stage in Brussels. If we leave the stage altogether we will have even less influence on policy decisions there. The twin pillars were mutually reinforcing: America listened because America believed that we could move Europe; Europe listened because we stuck by our friends and were thought to have America’s ear. I worry that the economic damage of Brexit will be accompanied by a further enforced retreat from a global leadership role into a truculent, transactional mercantilism in this country.

Perhaps the country is weary of well-doing. Perhaps perseverance is passive. Perhaps we do not care about keeping honour bright. I hope not, but what are the great global challenges that we should address if we are to live up to what the Speech says? I would say that the three biggest are: defending democracy and human rights in an age of authoritarianism; integrating China, the new economic superpower whose economy doubled in the previous decade, into the rules-based system; and maintaining our societies as open societies while climate change drives major population moves.

Clearly, we can do little against any of those three challenges on our own, so we need multipliers. We need to use the Commonwealth; curiously, it was not mentioned in the Speech, despite the Queen being the Head of the Commonwealth. We need to use what position we can still salvage in Europe and recreate that position in the United States. Then again, we might be able to make a contribution commensurate with our Security Council status, although I hope that we will talk about that less hubristically when it is real than we do now, in this Speech, while it is unreal.

I was almost invited to speak about Brexit by the noble and learned Lord, Lord Mackay. His reading of Article 50 is, of course, absolutely correct. The divorce negotiators are to take account of the framework for the future relationship; by definition, that is a separate document and a separate issue. However, if they were to take account of it, it follows that it should have existed and come first in the sequencing. Like Sir Ivan Rogers and Mr David Davis, I spoke up for not triggering Article 50 until we had some agreement on the future relationship—at least on what we wanted it to be. That advice was not followed so we ended up with an unsatisfactory, non-binding political declaration and the phrase about taking account of the framework was ignored in practice. Both sides of the negotiation were wrong in that, but I must say this to the noble and learned Lord: I fear that we are where we are and we cannot expect the negotiators to down tools and go back.

[Lord Butler of Brockwell (CB)]

Would it not be possible, if an agreement appears to emerge this week but cannot be put into legal form, to go ahead with the departure agreement, which leaves out that aspect, and thus satisfy the requirement to leave by 31 October? That seems to be the very valuable conclusion of the point made by the noble and learned Lord, Lord Mackay.

[Lord Kerr of Kinlochard]

It would not be wise, on either side, or feasible to depart on the basis of an understanding that was being turned into a legal agreement but without that legal agreement existing. Legally, we would move into a very strange status. It is perfectly possible to envisage a deal that can be turned into a legal agreement during an extension period but it is impossible to do that by 31 October and it is unwise—I do not think that either side would want to do so—to go on the basis of a political understanding with no validity in law. I am afraid that I do not agree with the noble Lord.

On the point made by the noble Lord, Lord Grocott, the idea that a 2016 vote, three Prime Ministers ago, can be permanently determinate does not seem to be the will of the people today. You can ask, “Do you want to be consulted or do you want to leave it to Parliament?” If you assume that there is a deal and you ask, “Do you want to be consulted?”, they say by a margin of almost two to one, “Yes, we want to be consulted”. If you assume that there is no deal and ask, “Do you want to be consulted or should it be left to Parliament?”, they say, “Yes, we want to be consulted”, by a margin of more than two to one. Moreover, it is a fact that since September 2017, the opinion polls have consistently shown that the country is now of the view that it would prefer to remain. This year more than 70 polls have been taken of which one gave a victory for leaving. I do not think that a second referendum is just the least worst way out of this fix; it is now the will of the people.

[Lord Grocott]

If the noble Lord is justifying a second referendum on the basis that public opinion has changed, of course while it can change, I think his bona fides would be absolutely crystal clear to everyone if he said that three years after the second referendum, public opinion could change again and we should then have a further referendum. You cannot hold referendums every five minutes. Even general elections are now legislated for every five years. We had 41 years between what the noble Lord, Lord Jopling, rightly referred to as the first referendum and the second referendum. People were asking for a second referendum after the 2016 vote in 2016.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I entirely agree with the noble Lord. I think that a second referendum, if or, more likely, when it comes, should be mandatory. It should not be advisory.

[Lord West of Spithead (Lab)]

Does the noble Lord agree that to have a robust foreign policy—I agree with everything he says on those issues—we need to have some hard power? Unfortunately, successive Governments have put us in a position where we are probably unable to put blood where our mouth is or to put in sufficient power as a permanent member of the Security Council. We need to have that if we are to fulfil our proper role.

[Lord Kerr of Kinlochard]

I agree entirely with the noble Lord.