Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Thursday 13th May 2021 Lords Chamber

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

It has been a great pleasure to hear two such admirable maiden speeches, and it is an honour to follow the noble Lord, Lord Strathclyde—our lost Leader—who clearly has not lost his panache. I would simply say in response to his attack on the Cross Bench that there is no Cross-Bench line and no Cross-Bench Whip. Cross-Benchers tend to listen to the arguments, and it is conceivable that they may vote on the merits. There are a number of explanations for a number of government losses in recent votes; it may have something to do with the merits of the issues.

What I want to talk about is Scotland. Sixty-two of the 73 constituency Members of the Scottish Parliament that convene today come in SNP colours. That would equate to 550 seats in the House of Commons. If Mr Johnson had done as well in 2019, his majority today would be 450. Of course, the balancing of this system has done its job and the SNP falls one short of a majority, but to call the election a setback for Mrs Sturgeon, as the noble Lord, Lord Forsyth, came quite close to doing, would be a little absurd. Like it or not, by winning a fourth consecutive term, the SNP Government are now the voice of Scotland, with the right to be heard. I do wish we could hear them in this House.

It would be no less absurd to assert, as Mr Johnson regularly did until recently, that the UK Government and this Parliament could flatly refuse a Section 30 order permitting an independence referendum should it again be sought. The union in 1707 was by consent, not coercion, and the best way of boosting the independence cause in Scotland would be to deny the right of the Scottish people to make a democratic decision. I am very torn about all this. My working life was spent in UK government service. I was privileged to head the Diplomatic Service of the United Kingdom. I liked having three identities and three citizenships—Scottish, British and European. I deeply regret losing one; I do not want to lose another.

In 2014, when Mr Salmond claimed that an independent Scotland could slip easily and instantly into the EU, I disagreed, pointing out that a period outside and an accession negotiation would be inevitable, and the terms obtained from outside inevitably less favourable than those Margaret Thatcher and John Major had secured from inside. The prospect of temporary exile from the EU may have dissuaded some Scots from voting to leave the UK in 2014. In 2016, the Scots voted by a larger majority against leaving the EU, only to be dragged out against their will, which might make some of them now regret and change their 2014 votes. It is a material change of circumstances, with leaving the UK now seeming the only route back to the EU.

But probably a bigger vote-changer in Scotland is the changed way the London Government have handled Scotland—and Wales and Northern Ireland. We have a Prime Minister who calls devolution a disaster. Seen through Scottish eyes, Whitehall risks seeming not a United Kingdom Government but an English Government, deaf to Scottish concerns. It was a very bad mistake when, on the morning after the 2014 referendum, Mr Cameron chose not to bind up the wounds but instead to promulgate EVEL—English votes for English laws. The promise to write the Sewel convention into law was honoured only in form without binding effect. Brushing aside Mrs Sturgeon’s White Paper and going for the hardest of Brexits, ignoring how much free movement meant for Scottish demography and the Scottish university, research and financial communities, Mr Johnson added insult to injury. Then came the internal market Act, driving a coach and horses through the devolution settlement—taking back control, but for England.

Trust, once lost, is not easily rebuilt. Maybe Mr Johnson will now try. I hope so. Parity of esteem and an end to gratuitous and patronising attacks on Scotland, Scotland’s elected Government and their mandate would be a start. But the key point is that if the union is to survive, its Government—the union Government, the Government of the four nations—must stop behaving like English nationalists. Precisely because they now have so few seats outside England, and no Macmillans or Douglas-Homes in their ranks, they must be seen to be alive to Scottish concerns. Why does Rhode Island have as many senators as California, and why did the EU adopt qualified majority voting? It was to give the views of smaller member states greater weight. Magnanimity in politics is not seldom the highest wisdom. Condescendingly throwing in a couple of freeports and some levelling up largesse will not take the trick.

As the noble Earl, Lord Kinnoull, pointed out, it is 18 months since the report of the noble Lord, Lord Dunlop, found

“broad consensus … that the UK’s intergovernmental relations machinery is not fit for purpose”,

but one heard nothing in the Queen’s Speech or from the Minister today about concrete steps to put that right. What is needed is genuine decision-sharing, which probably requires the permanent decision-taking forum for which Gordon Brown has called. Who knows whether 1707 can survive? What is certain is it will not unless Scots want it to, and they probably will not unless London rediscovers a United Kingdom mindset. Of course, for Scots, the economic hit from the break-up would be far greater even than that of Brexit, but Mr Johnson proved in 2016 that heart can overrule head. It could happen again. It is up to him now.

European Union (Withdrawal Agreement) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.

I want to speak briefly to Amendment 29, to which I have put my name. I have little to add to what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.

I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.

That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.

I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.

Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a pleasure, as always, to follow the noble Lord, Lord Thomas, but I shall take my text from what was said by the noble Lord, Lord Reid of Cardowan. I share his concern and surprise that the gracious Speech is silent on what seems to me to be the clear and present danger of the union disintegrating. I too will talk about Scotland, but also about Ulster.

I agreed with Mr Johnson when he told the DUP conference in 2018:

“No British Conservative Government could or should sign up to … regulatory checks and … customs controls between Great Britain and Northern Ireland.”


I agreed with that, but he has so signed up. Clearly I was wrong to discount the polls that told us that the party in England would rather lose Ulster or Scotland than delay Brexit. However, it still seems rather odd that the Government are so relaxed about the possible price to be paid. It does not take a crystal ball to spot what might happen when trade in both directions across the Irish Sea is subject to checks supervised by a third party, with tariffs payable to a third party on Northern Ireland’s imports from the mainland if there is any risk of those goods going on into the Republic. When many regulations and standards, all state aid rules and all VAT rules in Northern Ireland are set not by this Parliament or Belfast but by Brussels institutions in which Belfast is not represented but Dublin is, the economic integration of the island of Ireland will proceed apace. Will not political integration likely follow, with Westminster required to deliver on the 1998 promise of a border poll?

Northern Ireland voted to remain, and will now remain in much of the single market and all of the customs union. Anyone born there will retain the right of EU citizenship, except the citizen’s right of representation —but will not support for correcting that democratic anomaly be reinforced over time by Northern Ireland’s demography? A return to full EU membership would of course be easy. It would not require any accession negotiation; the 1990 German unification precedent would obviously apply.

It is not for a Scot like me to say whether the end of a century of Irish partition would be a good or a bad thing. All I can say is that it now seems rather likely, given Johnson’s betrayal of Ulster unionism. Where does that leave Scotland, which also voted to remain and whose Government have since argued in a series of White Papers brushed aside by Mrs May and Mr Johnson that, if the UK were to leave the single market and customs union, Scotland should be allowed to retain some kind of EEA-type arrangement—an arrangement rather like the one Ulster Unionists did not want but are now going to get? In Edinburgh the contrast adds insult to injury. If next year’s election up there returns another nationalist Government, I find it hard to see how the demand for another referendum on independence can be resisted. To go on dismissing self-determination would only fuel the demand for it, and the Irish have their right to a border poll. So where does this end?

In 2014 I campaigned against Scottish independence. Doing so will be harder next time. I annoyed Mr Salmond particularly by insisting that leaving the UK would mean leaving the EU, something few Scots wanted. That argument has gone. I majored on the economic downside to secession, but the English have just been persuaded that, for them, sovereignty matters more than prosperity. We should heed the eloquent warning of the noble Lord, Lord Reid of Cardowan; the Scots might take a similar view to the English. They might want to take back control. It is a potent slogan, and head might lose out to heart.

The gracious Speech was, as the noble Lord said, strikingly silent on all this and on how these risks could be reduced. However, the accompanying memorandum tells us on page 121 that the noble Lord, Lord Dunlop, is about to undertake an independent review into the UK Government’s “union capability”. I have absolutely no idea what that means, but I look forward to hearing from the noble Lord later today and wish him luck. I have great respect for him and it seems to me conceivably to be an extremely important exercise. I hope its terms of reference are broadly drawn.

In the meantime, I will make two concrete suggestions to the Minister. Will the Government include representatives from Edinburgh, Cardiff and Belfast in the new team being assembled to conduct the future trade relations negotiations and in the Joint Committee which is to implement the withdrawal agreement? Will they rapidly refresh strands 2 and 3 of the 1998 Good Friday agreement institutions, in particular considering how to give some democratic legitimacy to EU laws applying in future in Northern Ireland?

Northern Ireland (Executive Formation) Bill

Lord Kerr of Kinlochard Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Deech, reads far too much into this simple amendment, which is unambiguous and makes the point that power should rest not with the Executive but with Parliament. It would require Ministers to report on a Bill’s progress where progress is essential, such as with this Bill. Of course, most importantly, we should not give the Prime Minister of a minority Government, whoever he may be—let us all, particularly those of us on this side of the House, recognise that we are talking about the Prime Minister of a minority Government—the opportunity to suspend our constitutional proprieties.

I should like to make another point. I deplore the fact that the rules of my party have allowed this decision to be protracted over almost five weeks and to be taken by 0.3% of the electorate, a number of whom are 15 years of age; they are entirely eligible to vote, as I established earlier today. Many people do not realise that; I did not realise it myself until two or three days ago. The party in the country has had great power—way beyond what any party should have, particularly when it represents such a tiny percentage of the electorate. I believe that the real constitutional impropriety that the noble Lord, Lord Anderson, seeks to deal with is that of conferring on the Prime Minister of a minority Government—I repeat: a minority Government—the powers to dispense with the services of Parliament and to absolve himself of being answerable to it. As I said on Monday, the Government are answerable to Parliament, which must never be the creature or subject of government. This is a safeguard. We should support it.

[Lord Kerr of Kinlochard (CB)]

My noble friend Lady Deech would have made a marvellous Permanent Secretary. We heard about a dangerous precedent, unripe time and the risk of judicial review. I cannot see that risk; the amendment moved by the noble Lord, Lord Anderson, seems designed to reduce the risk of a situation that might go to judicial review arising.

I support the noble Lord’s amendment. As he said, it is strange and alarming that we should find ourselves in this situation, having to resort to a device to prevent a constitutional outrage—which it would be if Parliament were sent away so that the Prime Minister of the day could follow a course that both Houses of Parliament have consistently and regularly rejected.

To add one more point, I hope that the noble Baroness the Leader—I am sorry she is not in her place—is pursuing with the other place the proposal that we in this House put forward a fortnight ago for a Joint Committee to examine the costs and implications of a no-deal crash-out. In this House, the Leader represents not just the Government but all of us. We put forward the proposal but, to my knowledge, the other place has not yet done us the courtesy of even considering it. I hope that the noble Baroness is advancing our proposal and urging the other place to respond positively to it. I support the amendment.

--- Later in debate ---

[Lord Shinkwin]

The question is actually directly related to the House, so if I may I will continue.

I wonder if my noble friend, or indeed anyone in the House, could tell me why—I can quite understand why the noble Baroness would perhaps not like me to ask this question—as someone who was born with a disability, I am good enough to sit in your Lordships’ House, but this Bill suggests that someone diagnosed before birth with a disability such as mine in Northern Ireland would only be considered good enough for the incinerator. Because that is the brutal message of this Bill: if you are diagnosed with a disability before birth in Northern Ireland, you will not just be worth less than a non-disabled human being; you will be worthless—you would be better off dead. What a dreadful message for this House to send the people of Northern Ireland, without even having consulted them in advance.

As a disabled person, I am used to people feeling sorry for me, but today it is I who feel sorry for my party. What a desperately sad position this Bill puts my party in. Not only does it make a mockery of any pretence at government neutrality on a matter of conscience; it also enshrines inequality in law for Northern Ireland—and all this without consulting the people of Northern Ireland or their MLAs. How ironic that this is happening just before we celebrate a quarter of a century since my party, the Conservative Party, introduced the Disability Discrimination Act, which championed disability equality.

Perhaps saddest of all is the legacy the Prime Minister leaves if this Bill becomes law—a legacy of discrimination and death. Instead of ending burning injustices, if this Bill becomes law she will be leaving office after the creation of one of the biggest burning injustices imaginable.

Earlier this evening, my noble friend the Minister read out part of a letter to the Prime Minister concerning the amendments on same-sex marriage. I will do the same, only mine is a letter to the Prime Minister from more than 500 people with Down’s syndrome and their families. Perhaps my noble friend the Minister has it in his briefing pack—perhaps not. This is what they say:

“Theresa May, do you really want to look back at your time in Parliament and see one of your final acts being to introduce a change in the law that would be discriminating against our community and likely lead to many more babies with Down’s syndrome being aborted in a time of equality”.


How do they know the likely death toll for Down’s syndrome diagnosis? They know because in England and Wales, 90% of human beings diagnosed before birth with Down’s syndrome are already aborted. Indeed, while the last 10 years have seen amazing advances in medicine and technology, they have also seen a 42% increase in abortion of human beings with Down’s syndrome.

So, the writing is on the wall. If human beings diagnosed before birth with disabilities such as mine were wild animals, they would be given endangered species status and protected by law. But we are only disabled human beings, so instead we face gradual extinction. That is what this Bill imposes on Northern Ireland, without consultation.

I close with two questions for my noble friend. He is rightly respected as a leading advocate of LGBT rights and I take this opportunity to congratulate the noble Baroness, Lady Barker, on her recent marriage and to wish her and her wife every happiness. Love is love. It is a wonderful thing, as is the personal and societal security, stability and happiness that flow from it. My point is this: I would never presume to invalidate anyone’s love for another human being, including by denying them the right to get married. But why, then, do my noble friend and the Government use this Bill to invalidate the most fundamental right of all: every human being’s equal right to exist? For that, ultimately, is what this Bill does, and without the consent of the people of Northern Ireland or their MLAs.

My last question is this. Recent reports in the media suggest that the day is fast approaching when a predisposition to same-sex attraction can be established before birth. Yet there will be nothing to prevent abortions on that basis, although another reason would presumably be given. Would my noble friend stand at the Dispatch Box and defend the right for people to make such a choice, or would he stand with me and say that such discrimination would be unacceptable and wrong? If, as I hope, he would join me in opposing such discrimination, how can he possibly defend such discrimination against human beings whose only crime is to be diagnosed with a disability before birth?

It is no less unacceptable and wrong for us to impose such inequality on the people of Northern Ireland without their consent. It is vital that, at the very least, that consent is secured by introducing a requirement that a majority of MLAs support regulations before they are laid before Parliament. I urge noble Lords to support Amendments 16 and 16A.

[Lord Kerr of Kinlochard]

My Lords, that was an extremely impressive speech and I pay tribute to the noble Lord, Lord Shinkwin, but it was surely a speech about Amendment 12, not Amendment 16.

[Baroness O'Loan]

It has been said so often: Amendment 16 is an amendment to Amendment 12.

[Lord Kerr of Kinlochard]

Amendment 16 is entitled:

“Requirement for majority of MLAs to support regulations”.


I confess that I have huge admiration for Amendment 16, because I wish that I had thought of it when we were considering the question of possible prorogation and a crash-out deal with no consultation with Parliament. It is a wonderful thought that we could have written a prescription like this into the law, which would have required the Prime Minister to ring me up and ask, “What’s your view?”, and then work out whether there was a majority in both Houses for and against the crash out.

Actually, it does not make sense. Individually consulting Members of an Assembly that is not meeting does not make sense, I am afraid. It is of course open to the Secretary of State to consult whomever she wants, but to prescribe that she can proceed only if a majority consulted on the telephone or the internet agree is an absurdity.

I also remind those speaking to this amendment that the Minister made it absolutely clear that the consultations would be not about “whether” but about “how”. A number of the speeches that have taken place on Amendment 16 are more appropriate to Amendment 12 because they seem to assume that the consultations will be about “whether” and not about “how”.

Northern Ireland (Executive Formation) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Duncan of Springbank]

My Lords, this debate has stirred a great many emotions. We have heard very powerful speeches from all sides of the House. To ensure that there is no confusion, I will be very specific, and, if you will forgive me, I will break precedent and read what I have to say; it will be easier for me.

Abortion is a sensitive issue. There are strongly held views on all sides of the debate, in Northern Ireland and the rest of the UK. Many of those views have been expressed during this debate and during the passage of the Bill in the other place.

We must recognise the clear will of the other place. That House sought a commitment that the Government would legislate in these matters. The Government respect the views expressed in the other place. Those views were expressed on a free vote, which is a matter of conscience. I stress that the amendments which have come from the other place are procedurally correct, and we must recognise them for what they are. My honourable friend in the other place, John Penrose, the Minister, very clearly set out the challenges represented by the devolution settlement before these votes took place. In doing so, he was careful to ensure that the other place was fully informed.

As I made clear at Second Reading, there are technical problems with the drafting of this clause which need to be resolved. On an issue as important as abortion, which relates to the health and safety of women in Northern Ireland, it is not enough to express the desire for change. The Government must ensure that the drafting of the Bill is effective and can, in practical terms, deliver the change that the Members in the other place want to see. Discussion is ongoing, with the support of the Government, to try to deliver a clause that works. Discussions have taken place with the two Members of Parliament who moved the amendments. I hope that, when we come back to consider these on Report, we will have amendments which are fit for purpose.

I appreciate that there have been a number of views on this issue, not least those that have touched upon the question of devolution itself within a constitutional framework, and not least those that have touched upon the moral questions underpinning abortion. It is right that the Government take no view on these matters; these are matters of conscience, and each individual noble Lord must look to themselves on these matters. We hope that we can make progress on these matters at the next stage. On that basis, and rather than for me to do a full round—

[Lord Kerr of Kinlochard (CB)]

The Minister referred to the constitutional argument, and he is the greatest living expert on the Sewel convention, mentioned by the noble Lord, Lord Morrow. The noble Lord implied —or perhaps was explicit—that, if we passed this Bill, we would be in breach of the Sewel convention. In my recollection, the Sewel convention says that we will not normally legislate without the approval or consent of the devolved Assembly. This situation, where we do not have an Executive and an Assembly, seems completely abnormal. Therefore, I cannot see how we could be in breach of the Sewel convention. I would be very grateful if the Minister, as the expert, could give a ruling.

[Lord Duncan of Springbank]

I am loath to use the term “ruling” on this one, if I may be frank. I understand the noble Lord to be correct; the Sewel convention allows for not acting under normal circumstances, but by any definition the situation that Northern Ireland finds itself in today is not normal. However, I would not like that to carry with it the weight of greater minds than I. I may have to put a very formal note to your Lordships later to confirm that, just in case I am in any way in error.

On that basis, I ask the noble Lord to withdraw the amendment.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Kerr of Kinlochard Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

I am obliged to the most reverend Primate the Archbishop of York. I agree with his observation that ultimately we are concerned with a political, not legal, decision. We have to remind ourselves that the withdrawal agreement is the means to an end, not the end in itself. Either we leave on 29 March without any deal in place, because the law has already determined that that is our exit date, or we can leave sensibly, with a withdrawal agreement that takes us into the realms of further negotiation for our future relationship. There is no reason to suppose that as a consequence of that further move we are ever going to find ourselves in the backstop, let alone considering how to come out of it.

[Lord Kerr of Kinlochard (CB)]

There are two other options. We could of course change the law and we could take an extension under Article 50. I think there are new elements in the new texts. I do not think they remedy what is, for me, a humiliatingly bad deal, but I see two new elements. First, there is a greater urgency—or an impression of urgency—in the treatment of the search for alternative arrangements to the backstop. The impression created is that the philosopher’s stone will be more actively sought. That does not guarantee that the philosopher’s stone will be found, and that is the risk that the noble and learned Lord, Lord Mackay of Clashfern, might want to bear in mind as well.

The second point is more legal than political. I see a change in the treatment of the risk of being trapped in the backstop because the European Union breaks the commitment in Article 5 of the withdrawal agreement to exercise good faith. As the Minister said, however, that is a vanishingly small risk. As the noble and learned Lord, Lord Goldsmith, said, the real risk is that the search for a mutually acceptable solution—a workable alternative arrangement—continues for some considerable time to prove fruitless. That is the real risk. Alchemy is like that. Does the Minister agree? Does he also agree with Mr Varadkar that the texts are perfectly acceptable because the withdrawal agreement has not been reopened and the backstop not been undermined?

[Lord Keen of Elie]

My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?

Brexit: Legal Position of Withdrawal Agreement

Lord Kerr of Kinlochard Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to my noble and learned friend, and I entirely concur with his observations. As I sought to indicate earlier, as a law officer I am willing to take questions on matters of law that the House deems it appropriate to render to me, albeit I understand and appreciate that they may have better sources of legal advice than me. Some of your Lordships who are aware of the proceedings in the other place will know that the Attorney-General made a clear and unambiguous undertaking to Members of that House to fully, properly and clearly inform them on legal questions that they pose with regard to the withdrawal agreement, and he would do so with fidelity.

[Lord Kerr of Kinlochard (CB)]

My Lords, may I take the Minister back to his answer to the noble Lord, Lord Thomas of Gresford, who alluded to the statement in paragraph 158 of the explanation document published on 14 November? The Minister’s answer built quite a lot on “best endeavours”, which in diplomatic parlance is an oxymoron. The Attorney-General seems to me to have thrown a lot of very honest and clear light—in the memorandum, in his Statement and in what he said to the House after his Statement—on what is to me a desperately humiliating proposal.

If we were in the backstop, we would be observing the common external tariff and common commercial policy of the EU, policies in which we would have no say. The backstop makes clear that we would be informed about any changes in the tariff. We would be informed—not even consulted—about any changes in our external tariff. The potential longevity of the backstop is therefore quite an important issue. I thought the Attorney-General was very honest when he said it was a calculated gamble and he did not believe that we would be likely to be trapped in it for ever. In other words, he accepted the possibility that we might be trapped in it, wholly or in part, for ever. I myself would not wish to run that risk. The French have a saying, “Nothing lasts longer than the provisional”. Would the Minister like to try to give a more complete answer to the question from the noble Lord, Lord Thomas? I do not think “best endeavours” is quite enough.

[Lord Keen of Elie]

I thank the noble Lord for his observations. He goes some way towards explaining why we arrange for these agreements to be interpreted by lawyers, not diplomats. Of course entering into something such as the Northern Ireland protocol involves an element of political judgment; we have to accept that, and the Attorney-General was entirely candid about that. There is a political judgment to be made. There is in the agreement no express right of unilateral withdrawal, and we accept that as well. However, if one or other party decides not to obtemper their obligations, there are mechanisms to address that.

Brexit: Negotiations

Lord Kerr of Kinlochard Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

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

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

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

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

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

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

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. There may be a situation in which powers go to the devolved Administrations and yet they do not deal with those powers, and it may be considered that upon further consideration there are additional areas where frameworks ought to be based on a UK-wide determination and where regulations would be made. But as the noble Lord himself observed, that regulation-making process would involve us consulting the Scottish and Welsh Governments—and, I hope at that stage, a Northern Ireland Executive—so that we could secure their consent. Only if there was a failure to secure the consent would the matter go forward to this Parliament, with two clear safeguards. First, the Minister of the Crown would have to explain to Parliament why he was seeking to make those regulations without the consent of a devolved Administration, and secondly, there would be an opportunity for the devolved Administration to make their representations to this Parliament as to why they felt it appropriate to withhold their consent. But, as I said, there may be a period after exit when it occurs to parties that it might be appropriate to proceed in that way.

Turning to the question of where we are with the Scottish Government, I begin by saying that the door—

[Lord Kerr of Kinlochard (CB)]

Before the noble and learned Lord moves on, did I miss it or has he answered the point made by the noble and learned Lord, Lord Mackay, on when the sun will rise before it spins across the sky for five years? When does it start? Is it with the particular regulation?

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Kerr. My understanding is that the five-year period will commence from the point at which the regulation is made.

[Lord Kerr of Kinlochard]

So in practice we could be looking quite a long way ahead—it is five plus X.

[Lord Keen of Elie]

I am tempted to mention here the noble Countess, Lady Mar.

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I have the greatest respect for the noble Lord, Lord Wigley, but my head says that this will not work and that the noble Lord, Lord Adonis, is absolutely right. Citizenship is defined in the treaty as being a citizen of a member state. When we cease to be a member state, we all lose our citizenship, unless we are lucky enough to live in Northern Ireland or to be born in Northern Ireland. I do not think the Greenland precedent works, on the grounds of chronology. It was not actually Greenland seeking independence, and it preceded the concept of citizenship emerging in the European Union in the Maastricht treaty.

[Lord Wigley]

Does the noble Lord not accept that although it happened chronologically before the treaty of 1992, the rights continue afterwards and therefore are respected?

[Lord Kerr of Kinlochard]

I am afraid it does not apply to 60 million of us. It did apply to 40,000 Greenlanders a long time ago. My concern is that we should be careful in what we ask the Government to do. The noble Lord, Lord Wigley, said that this is purely a matter of political will, and that the Government could fix this if they chose to. I am afraid that this is not the case.

I would like to ask the Government if they could construe for us the missing paragraph 32 from the draft withdrawal agreement of 28 February. The Minister will remember the Leader of the Opposition’s question on the Statement on Monday. Paragraph 32 was in the draft of the withdrawal agreement of 28 February. It read:

“In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another member state”.


It seems to me that the Government should exercise political will here and carry on negotiating. I was encouraged to see that the paragraph had dropped out, because it limited the rights of UK citizens living in continental Europe after we leave, if we leave, to the particular country in which they live. It seemed to me that these rights ideally should be portable, so that somebody living in France could live in Italy or Spain and retain these rights. I have always thought it a little harsh of the European Union side in this negotiation to take the opposite view. I was encouraged to see that prohibition on the rights extending to residence in another member state had dropped out of the text that was looked at in the European Council.

I hope this means that the Government have either succeeded in killing that prohibition or, perhaps more likely, are themselves continuing the fight to try to get rid of that prohibition. It would be very useful to know. I think that leaving the European Union will be a disaster for all of us. I resent the fact that I will no longer have any rights as a citizen. But it seems to me that it is particularly awkward for those people whose legitimate expectations when they chose to live in France, Italy, Spain or wherever will be reduced. They will still be able to exercise their rights when they live in the country to which they chose to move, but they will not be able to choose to move to another country and retain these rights. I would be glad if the Minister could elucidate the answer to the Leader of the Opposition’s question on the Statement on Monday.

[Baroness McIntosh of Pickering (Con)]

My Lords, it might be helpful if I, as a half-Dane, set out the position of Greenland. The noble Lord, Lord Wigley, raised the interesting point of what the status of UK citizens will be when we leave the European Union but continue to benefit in some places from it. Greenland is an autonomous Danish dependent territory, with only limited self-government and its own Parliament. It withdrew from the European Union but nevertheless is now associated with it under the Overseas Associated Decision and is eligible to benefit from funding from the EU’s general budget through the EU-Greenland partnership. That begs the question of whether the Government are minded to apply for such associated status so that citizens from parts of the UK can benefit in the future.

--- Later in debate ---

I hope this amendment is helpful to the Government, because it draws attention to something that will need to be fixed in the light of the withdrawal agreement taking place. In those circumstances, I look forward to hearing what the Minister has to say and beg to move.

[Lord Kerr of Kinlochard]

My name is to this amendment, but I have little to say because the case for the amendment has been brilliantly put forward by a lawyer, and I am no lawyer. It seems to be a common-sense amendment. If, as I think will be the case, the European Union side in the negotiation continues to insist that, if we want a standstill period in which we act as if we were members of the customs unions and the single market until January 2020, the jurisdiction of the Court of Justice as the umpire of the single market must continue. It seems to me we have to accept that if, as I expect, the European Union insists on taking the position it is now taking. In that case, as explained by the noble and learned, Lord Goldsmith, Clause 6 would have to be struck out. Clause 6 is in flat contradiction to what is going to be agreed on the standstill agreement. Therefore, it seems sensible to avoid having to repeal part of the law that we would have passed for us instead to introduce this small amendment that simply says that Clause 6 does not come into effect until the end of the transition period.

The concept of a standstill transition is extremely unsatisfactory. It is necessary but it is insufficient to deal with the huge problems that British industry and business will face. It is inconceivable that by January 2020 we will have negotiated a full agreement with the European Union covering the full gamut of our future relationship, including trade. That is just not feasible. Even if we had done that—if we had achieved the impossible—we would have a mixed agreement which would require national ratification in all capitals. All the standstill agreement does is give us the position for 21 months that we will accept and operate under laws that we have not written, on which we have had no votes; with no judge in the court but the court having jurisdiction; with no Members in the European Parliament but the European Parliament writing our laws, with the Council; and with no one in the Commission. I find that ignominious and insufficient because all it has done is move the cliff edge out to 1 January 2021. We will not have the long-term, permanent successor relationship defined in treaty form in a ratified treaty at the end of this period.

Moreover, it is my judgment that for legal reasons it will not be possible to extend the period. It seems to me that one cannot use Article 50, which is about withdrawal, to produce an extended period of future relationship. There are other articles in the treaty which define association agreements and relationships with third countries. I do not think the lawyers will allow us to use the withdrawal agreement as a treaty base for an extended period of new relationship. Therefore, although it is absolutely necessary to have a standstill because otherwise the cliff edge is very close, it does not solve the problem of the cliff edge but merely postpones it for a bit. But the amendment moved by the noble and learned Lord, Lord Goldsmith, must surely be right. It does not make sense to have a lengthy Clause 6 explaining a relationship which will not actually be the relationship we follow during the standstill period.

[Lord Davies of Stamford]

My Lords, I am mystified as to why there is any controversy at all on this matter and why the Government have come forward with a Bill that includes Clause 6 in its present form. After all, it is us who have asked for some withdrawal or transitional arrangement, and very necessarily so—I quite agree with the noble Lord, Lord Kerr; the whole matter is extremely unsatisfactory from many points of view.

Although our position will change constitutionally in March next year if we go ahead with Brexit, and we will not have been involved in the legislative process and so forth, the whole purpose of the transitional arrangement as I and I think everybody has understood it—that is the way the European Union has understood it, because after all, it is our request—is that the regime affecting all economic agents, traders and so forth, will be completely unchanged. They will carry on after March next year until January 2021 in exactly the same way. The rules they operate under will be the same. Their contracts will be interpreted in the same way as before. Their obligations to the state and so forth will be interpreted in the same way and therefore they will know exactly where they stand. They will not need to have any new regime introduced during that period. If that is the case, surely the legal regime must not be subject to any change—quite obviously so —because if it is going to continue as it presently is, the judgments of the courts which oversee that must be the same as they otherwise would have been.

Therefore, I am completely mystified as to why the Government have proposed that Clause 6 should come into effect on Brexit rather than at the end of the transitional period. I just hope that we will have a satisfactory and credible explanation from the Government. They might even admit that they have made a slight slip on this occasion and accept the amendment which is now before them.

--- Later in debate ---

[The Duke of Montrose (Con)]

I had a son who worked in the European court. As far as I understand it, if an issue comes up which is relevant to the United Kingdom, it is unlikely that a United Kingdom judge would be part of the panel asked to rule on it.

[Lord Kerr of Kinlochard]

There will be no United Kingdom judge: when we are not members of the European Union, we will not be entitled to have a judge at the European Court of Justice. The noble and learned Lord, Lord Hope, is absolutely right, I am afraid.

[Lord Vinson (Con)]

My Lords, the ECJ works at a snail’s pace. There will be a massive amount of undigested legislation one way or the other at the end of the transition period—how does this affect the issue?

--- Later in debate ---

[Lord Keen of Elie]

We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

[Lord Kerr of Kinlochard]

The Minister has just been paying tribute to the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, whose language in this amendment copes with both eventualities. It sets out the contingency that there is a transitional agreement. I do not see the difficulty.

[Lord Keen of Elie]

It is not a question of difficulty; it is a question of how we have decided to approach dealing with this in a legislative manner. The intention is that the present Bill will legislate for legal certainty whether there is or is not a withdrawal agreement. In the event of a withdrawal agreement, we will legislate to ensure that in the withdrawal agreement and implementation Bill the terms of the present Bill will be brought into line with the terms of the withdrawal agreement in order that we can discharge our international legal obligations. We have consistently pointed out that that is the approach being taken to legislation in this context. It is really quite inconceivable to suppose that the Government are going to enter into a withdrawal agreement and then not implement that international legal obligation in our domestic law. That is the intention. It is simply a question of the order in which these things are being done, and it has always been maintained, and will be maintained, that it is not for this Bill to deal with the eventuality or the prospect of the implementation period.