European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Liddle

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Liddle]

My Lords, I just want to get Amendment 196 on the record, because it makes helpful points which should be taken into account by noble Lords when we come to devise a composite amendment on Report. That is why I am anxious to speak and I am sorry if I have upset the noble Lord, Lord Hannay.

We have had many excellent speeches. I think the three by the noble Viscount, Lord Hailsham, the noble Lord, Lord Patten, and my noble friend Lord Reid are among the best I have heard on this Bill and perhaps even since I have been a Member of this House. I fully support what they said.

The purpose of Amendment 196 is to build on the Grieve amendment that is now incorporated in the Bill. En passant I will say from this side of the House how much I respect the bravery of the Conservative MPs who voted for that amendment and put the national interest first. If they had not done that, a lot of the point of our proceedings would have been removed—so I respect them enormously.

The merits of Amendment 196—I will be very brief—are, first, that it specifies a date by which the Government have to produce their withdrawal agreement: 31 October 2018. That would prevent any attempt to bounce a last-minute decision through Parliament. Secondly, it attempts to deal with two eventualities: not just the eventuality of no agreement and no deal being reached in Brussels but also a failure on the part of the House of Commons to agree to and adopt the resolution that the Government will put forward seeking to endorse that agreement.

It does not give the House of Lords a veto. I agree with what the noble Viscount, Lord Hailsham, said: these matters fundamentally have to be decided by the Commons. This amendment allows the Commons to consider a whole series of options, including the extension of Article 50.

[Lord Kerr of Kinlochard (CB)]

I am grateful to the noble Lord. I agree very much with what he said about the speeches from the noble Lords, Lord Reid and Lord Patten, and the noble Viscount, Lord Hailsham.

I am concerned about the point he is on now. Subsection (2)(b) of the clause proposed by Amendment 196 seems to me to open the possibility of a period after we have left the European Union before we have any agreement with it in respect of the terms of withdrawal. That would be an extremely dangerous legal vacuum.

One of the desirable features of the Mansion House speech was that we had no more nonsense about no deal being better than a bad deal. It was clear that the Prime Minister wished to do a deal. It is very important that, if we leave the European Union, we do so on the basis of agreement with it on the terms of our withdrawal. If not, our position with third countries would be impossible and they would be unable to do business with us until we had established a secure position with the European Union—and, of course, our position with the European Union would be pretty bad. So I agree with the spirit of this amendment—indeed, I agree with the spirit of all the amendments in this group—but it seems to me that there is a real danger lurking in the wording of subsection (b).

[Lord Liddle]

If the noble Lord, Lord Kerr, thinks there is a danger, we will have to look at it again because I so respect his judgment. I certainly do not want to create a legal vacuum; I want to see the possibility of an extension of Article 50 as one thing that Parliament might do if it decided to reject the Motion on the withdrawal agreement. I also think that it would be appropriate for the Commons to decide on any other course—and certainly I agree with the noble Viscount, Lord Hailsham, that a referendum would be a possibility in those circumstances. How can we possibly judge at this stage what those circumstances will be? We have to have in our amendment—while maintaining legal certainty—the possibility of the Commons being able to decide on a number of different things.

European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Liddle

Wednesday 14th March 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I support the amendment of the noble Lord, Lord Hain, and that of the noble Lord, Lord Browne, to which I have added my name. I do not need to say very much in support of the amendment of the noble Lord, Lord Hain, because he introduced it so clearly and fully, except to say that I agree with the noble Baroness, Lady Doocey: I cannot see any reason why the Government cannot accept the amendment of the noble Lord, Lord Hain, tonight. It seems to me that it sets out very clearly the commitments made by the UK Government, which we all agree are very important. In its second paragraph, it provides for the possibility that there might be something in the magic solutions to the border. If there were, that would be taken into account in the wording of the amendment of the noble Lord, Lord Hain. I therefore hope that the Government will accept it.

Turning to the amendment of the noble Lord, Lord Browne, my only point is that the extraordinary linguistic fudge in December is very hard for the lawyers to construe. It has been construed by the Commission lawyers in the 118-page draft withdrawal treaty, which was published on 28 February. It has been construed as requiring “a common regulatory area” in Northern Ireland and including Northern Ireland in the EU’s customs territory. Many in London have denounced these solutions; many in London and some in Northern Ireland find them unacceptable. However, they have at least tried; they have produced a draft treaty with draft clauses explaining how they think that fudge could be construed and turned into treaty language. We have not done so: all we have done is make another speech, including the same two suggestions that were made last summer, one of which the Secretary of State for Exiting the EU immediately dismissed the day after as blue-skies thinking. We still seem to be at the stage of blue-skies thinking, but next week in the European Council, we will be confronted by a draft treaty that provides a solution acceptable to some in this country but not acceptable, perhaps, to all in this country. It is half way there. I really worry that if we stick to speeches and do not produce drafts, it is very hard to see how this negotiation will reach a conclusion.

I very much support the amendment of the noble Lord, Lord Browne, and it is in the spirit of that amendment that the Government should be thinking very hard of producing the legal language that they want, and then a real negotiation could start in Brussels. Personally, I do not think that it is possible to find the legal language that matches the Mansion House speech. I believe that the only solution that is likely to be acceptable to all parties in Ireland and in this country is continuing membership of a customs union for the United Kingdom as a whole, which is, of course, what the CBI, the TUC and manufacturing industry want, and we all want for other reasons as well. We do not all want it, but on my side, we do all want it. I think that that is where it will end up. But if the Government think there is another way to go, they really need to produce the language and put it on the table in Brussels quickly.

[Lord Liddle (Lab)]

Is there not a more sinister potential interpretation of the Government’s behaviour—that they have looked into the customs partnership paper that they published in August and decided that nothing can really be made to work out of it? Therefore, their hope at the moment is that the EU 26 will force Ireland to accept some form of hard border because it is in the trade interests of the EU 26 to make sure that there is a smooth exit for Britain. Is this not an extremely dangerous situation for us in the United Kingdom and in the Republic of Ireland, in which we might end up in a situation where the EU 26 agrees to some form of hard border that then leads ultimately to a further outbreak of the Troubles?

[Lord Kerr of Kinlochard]

I would not want to attribute sinister motives to the Government—I think that somebody managed to get the word “cock-up” into Hansard the other night. Conspiracies are very rare. It is possible—and there are some who believe—that the 26 will lean on Dublin; that is perfectly possible. It is unlikely, and it is of course the case that the European Council decides by unanimity, so if one were looking for a settlement in the European Council which meant that the 26 leaned on Mr Varadkar, Mr Varadkar would have his vote and could say that he did not agree. However, I have seen no signs of the 26 leaning on the Irish. It looks to me from what Mr Tusk said when he went to Dublin the other day that we are heading for another European Council where the Irish position on the hard border and our position on the hard border are recognised by everybody. Nobody wants a hard border.

European Union (Withdrawal) Bill

Debate between Lord Kerr of Kinlochard and Lord Liddle

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Liddle]

I would like to follow that up with a relevant question to the noble Lord, Lord Kerr. I agree with all the excellent speeches in favour of this amendment. To me, the politics of the amendment is the question of whether, when exit day is discussed, Parliament knows what it is exiting to. That is the question. If Parliament does not know what it is exiting to, surely the logic is that the date should be extended until it does.

Along with my noble friend Lady Kennedy, I have recently been on Select Committee visits to Brussels, and she can confirm that there is much uncertainty about what information will be available to Parliament in the autumn of this year. If things go well, we might have a withdrawal agreement and a transition period, but the only thing on the future relationship that we will have is a political declaration. There is no question at all of there being a trade agreement when Parliament votes; it will be a political declaration. The European people to whom we talked said that they wanted that to be clear and precise. However, at the same time, people said to us, “We think that possibly your Government might quite like to get away with a fudge”. Why should Parliament be put in the position of taking this crucial decision when all the British Government are offering is a fudge?

[Lord Kerr of Kinlochard]

To respond simply to the noble Lord, Lord Adonis, it would be a political issue, not a legal or a treaty issue. My view has only the same weight as anybody else’s, but I would say that if one sought an extension in order to carry on a negotiation, it would be very doubtful that one would get it. However, if one sought an extension because Parliament had decided that the terms of the deal available were such that they should be put to the country at large in a second referendum, I am convinced that that request for an extension would be granted.