EU: Future Relationship

Lord Thomas of Cwmgiedd Excerpts

Wednesday 23rd September 2020 Grand Committee

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, it is a privilege for me to follow the noble Earl, Lord Kinnoull, on whose committee I serve and which—before I joined it, I must hastily add—has done so much to clarify the position in relation to Northern Ireland and other aspects of the negotiation. I thank the Minister for his clear and courteous introduction to this debate.

So many of the points I would have wished to have made have already been made, but I shall take three as briefly as possible. First, on the inclusion of the devolved Governments, I do not believe it is too late, even at this 11th hour, for there to be more involvement of the devolved Governments in the formulation of the final strategy and in the final negotiations. What has happened in the past few days in relation to co-operation on Covid-19 has, without doubt, been beneficial to the whole of the UK. Why not do this in respect of the UK negotiations? It is a sad conclusion to say that what has happened to date is wholly inadequate—as the noble Baroness, Lady Hayter, so eloquently pointed out—judged, as people should be judged, by deeds rather than words.

Secondly, it is important to move forward in a way that produces a good long-term relationship while respecting the sovereignty of the United Kingdom. A positive future relationship with the European Union is, without doubt, in the interests of the UK and throughout the EU. I make one point regarding the development of the law. We live in a world that in my current day-to-day experience is, despite the effects of the pandemic, becoming more global than ever. Online meetings and discussion fora have driven globalisation, dialogue and interaction at a faster and more inclusive pace over the past six months, and I think it is inevitable over the next six months. It is so easy to contribute worldwide without having to travel and yet to make the points powerfully at meetings, conferences and negotiations. Moreover we have seen how data is ever more easily transmitted, which is driving and building an even more valuable market quite apart from progress in digitalisation. This means that the law must develop apace. To date, the UK has exercised a considerable degree of influence in the development of the laws that underpin trade, commerce, including trade in data, and other aspects of the digital economy and our financial and professional services. We are currently leaders, and this is hugely beneficial to the UK. From the new year, we will be on our own. In relative terms we must accept that we are a small-sized player, and in such circumstances our reputation and integrity will be central to our continued ability to punch above our size. Apart from integrity and reputation, we need close working relations in order to drive forward legal development. What matters is that we have in place a good structure for legal development and also regulatory co-operation, supervisory arrangements and the management of data, which are allied to it. The City’s suggestion of a memorandum of understanding is well made and entirely consistent with sovereignty, however you may wish to describe it. Relying on unilateral actions, such as the equivalence decisions, is not the way forward in our globalised world.

Our ability—and this is the third point that I wish to make—to move forward and build our position for the future must be done on good, sound legal foundations. It is a common experience for a lawyer that people disagree about the meaning of agreements, even those that may have been made only a short while before. I was not entirely surprised that there might be disagreements about the meaning of the Northern Ireland protocol or difficulties in working it through, but we agreed it. In such circumstances, what is expected is that the parties try to resolve their disagreements through provisions such as those in the protocol and the withdrawal agreement, and if they cannot resolve it by agreement, they do what litigants always do, and that is use the dispute resolution mechanisms. If a quicker decision were needed than through the mechanisms contemplated in the agreement, then modifications would be proposed. That regularly happens when a dispute arises that needs urgent resolution. I see no reason why the current dispute could not be resolved in a matter of a month or more. If the British Government believe that they are right, why not propose that?

Therefore, it is very difficult to understand why that obviously right course was not followed. However, what is entirely understandable is the resignation of the two expert leading government lawyers, Sir Jonathan Jones and the noble and learned Lord, Lord Keen, who carry the highest degree of respect in the profession and have so expertly advised and helped the Government throughout this period. In following what is required, you uphold the rule of law and you comply with the law. As the Civil Service Code reminds us, complying with the law is an essential aspect of integrity. What you do not do is deliberately break an agreement or threaten it. Many have spoken powerfully about that, and I need say no more about it or about the consequences, but there are due consequences for the areas about which I have spoken.

First, the rule of law, our adherence to it and respect for it, is central to our position in the world and our leadership in the development of the law and those other areas of commerce and trade underpinned by the law: financial and professional services and the digital and data economies. That is central to our future, and we do ourselves enormous damage by pursuing the current course. Secondly, we need agreements with the EU and others for the future. Who wants to deal, or at least deal on good terms, with those who break or threaten to break agreements rather than have recourse to dispute resolution? I very much hope that the Minister will be able to explain, as the noble Earl, Lord Kinnoull, has already asked, why we are not pursuing that course.