Queen’s Speech

Debate between Lord Kerr of Kinlochard and Lord Lilley

Wednesday 18th May 2022 Lords Chamber

[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.

Queen’s Speech

Debate between Lord Kerr of Kinlochard and Lord Lilley

Wednesday 16th October 2019 Lords Chamber

[Lord Lilley]

Theoretically it can, but de facto it cannot. The European Parliament did once sack the whole of the European Commission because of corruption when Madame Cresson appointed her dentist, but then the Commissioners were virtually all reappointed. If that is the noble Baroness’s idea of democratic accountability, I have to tell her that it is one of the reasons I am in favour of getting out.

It is indeed that lack of accountability which makes me—

[Lord Kerr of Kinlochard (CB)]

As regards the time the noble Lord is referring to, the European Parliament did sack the Commission.

[Lord Lilley]

I just mentioned that, so I wonder if the noble Lord was listening to me. The European Parliament did sack the Commissioners, but they were all reappointed—virtually all of them except for Madame Cresson.

I shall give way again so that the noble Lord can tell me what really happened.

[Lord Kerr of Kinlochard]

The Commission exercised its power, just as it is exercising its power now, in the case of some nominees for the next Commission, not to appoint them. When there is a complete slate, it will vote on that slate collectively. The European Parliament has a good deal more say over the appointment of the Executive than we in this House have over the appointment of, say, the Civil Service. While it is a good thing that we do not have a say over appointments to the Civil Service, the structure in Strasbourg and Brussels is more democratic than what we have here.

[Lord Lilley]

I believe that what the noble Lord has just told me is that it reappointed the slate, and that is broadly my recollection. But in practice it does not. However, what I said about the experience of southern Europe not leading to anyone being removed is a simple fact.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Kerr of Kinlochard and Lord Lilley

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.

The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.

The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.

The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.

[Lord Lilley (Con)]

Could the noble Lord clarify whether it would be possible for the European Council to set the condition that the British Parliament, or the British Government, agree to hold a referendum? I agree that it would not be possible for it to set conditions that limited our powers within the period of membership, but surely it is possible for it to do that.

[Lord Kerr of Kinlochard]

That is absolutely out of the question. The treaty language, including in Article 50, is absolutely clear that it is for the member state to proceed under its own constitutional procedures. That is specifically spelled out, including in Article 50. The idea that the European Union would interfere in our domestic decision-taking constitutional arrangements is out of the question.

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

Debate between Lord Kerr of Kinlochard and Lord Lilley

Wednesday 27th February 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Following the noble Lord, I am reminded of how much he has done down the years to encourage our engagement in Asia and Asian investment in this country. I feel very sorry for him, because this must be a sad time for him. If you take just Anglo-Japanese relations, his work down the years was remarkable. We know what the Japanese banks here are doing. We know what Hitachi and now Honda are doing. We know what Toshiba is doing. We know about Sony and Panasonic. When will we hear from the third of the great car companies, Toyota? Actually, we did hear from it. It exports 80% of its UK production to the European Union. Its executive vice-president, Didier Leroy, said that:

“The UK government should … understand that we cannot stay in this kind of fog when we don’t know what will be the output of the negotiation”,


and that any kind of EU import tax would create a huge,

“negative impact in terms of competitiveness”,

for its UK plant. That quote—

“we cannot stay in this kind of fog”—

was from October 2017. It is still in this kind of fog. We have not told it anything, so it is not surprising that it has given up and is backing off. It has given up expecting clarity from us.

[Lord Lilley]

I am sure the noble Lord will want to congratulate Toyota on opening in this country a year later—in October last year—a line producing the best-selling car in the world, opened by the Secretary of State. That shows a rather different picture to that he was portraying.