Brexit: Withdrawal Agreement and Political Declaration

Baroness Deech Excerpts

Wednesday 5th December 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, the situation is changing even as we speak. Yesterday we heard the legal advice given to the European Court that Article 50 could be unilaterally withdrawn by this country to put us back where we were—an unsurprising opinion, given the federal push of that court. Given these options of going back, “Macbeth” sprang to mind:

“I am in blood

Stepp’d in so far that, should I wade no more,

Returning were as tedious as go o’er”.

That is one of my themes. I should also add that I do not think the Motion in the name of the noble Baroness, Lady Smith, helps us. It is unconstructive and provides no solutions.

This national debate is not just about the economy. It is not even about whether we will speculatively be poorer. For leavers, it is about the recovery of self-determination and self-respect, democratic governance, the rule of law and respect for human rights, all of which have been under attack by and within the European Union. It is in that light that we must consider the withdrawal agreement, which is more about European survival than anything else. As others have explained, it takes all the money on the table, but holds us in a customs union, potentially for ever, through the backstop, unless we accept whatever departure terms the EU may dictate. Withdrawal is indeed like a divorce. One side will be paying up indefinitely so that the other can keep up the style of living to which it is accustomed. We have no need to see the legal opinion that was extorted yesterday. It was obvious.

I do not believe the professions of wishing the backstop to be short term. The Joint Committee will be weighted towards Europe and unaccountable and its meetings will be confidential. It is unacceptable to have the ECJ involved in arbitration over whether we could leave the backstop. As I have said before, it is a court with a federalist mission, with judges on short-term contracts with vast salaries and pensions—a system that would be unacceptable here—who have recently made judgments, such as upholding the non-disclosure of MEPs’ expenses and the clamping down on gene-edited crops, that are simply wrong. It is no impartial arbiter.

The protocol locking the UK in without a right to leave is unique and unprecedented in trade treaty law. Will the Government persuade the PM and the EU to drop the backstop? Perhaps the Minister can assure us that the Vienna Convention on the Law of Treaties will enable us unilaterally to withdraw from the withdrawal agreement, as I believe it does, because, as that treaty specifies, withdrawal is possible unilaterally when it is contemplated and when there is, as there probably will be, a profound change of circumstances.

As far as Northern Ireland is concerned, it is sad that threats of terrorism should affect our policy, but my reading is that the agreement will make Northern Ireland subject to Dublin’s influence. It is likely that unification is the only answer to the inflexible approach now being taken. Perhaps that was always what was in the Republic’s mind. Northern Ireland’s democracy is being taken away; it will remain subject to EU law and control without having a vote, which is contrary to human rights. Either the EU should accept British bona fides on avoiding a hard border or the technology that we know is available should be presaged in the agreement. Were there to be a clean break, the EU could force Ireland to conduct checks at the border. This might be the very shock needed to make Ireland find ways to arrange checks away from the border. A clean break might be better for Northern Ireland than this agreement.

As in a bad divorce, the financial obligations will continue long past any commitment of the parties to each other. The meal ticket for life encompasses our meeting commitments entered into in 2020 and 2021—a great temptation to the EU to commit to as many programmes as it can in this period while we will have no vote but have to pay. We will have to meet the pension obligations incurred for the lifetime of the pensioners and their dependants. All these sums will be calculated by the EU. The Union law referred to in the agreement includes the Charter of Fundamental Rights, in blatant contradiction to Parliament’s decision not to include that charter in the carrying over of EU law after March. All in all, our sovereignty has not been reclaimed. It is even more diminished, and the rule of law is compromised by the uncertain scope of articles referring final decisions to bodies outside this country and not under our control.

Would a second referendum help? Quite apart from the difficulties in arranging one and deciding what the questions should be, it would create further constitutional complexities. To hold another drains the last of its legitimacy; it means none is legitimate. A referendum’s legitimacy lies in its one-off quality—it is monogamy compared with bigamy or polygamy.

If we leavers were regarded as ignorant and misled in 2016, how can any voter in a hypothetical second referendum be regarded as competent unless they have read the 585 pages of the agreement, are able to choose between four or five options and have got to grips with the backstop, the customs union and the single market? In any case, it is likely that leave would win again, because if there is one element that even a staunch remainer will not stomach, it is being bullied into changing their mind under a barrage of state propaganda. The British voters remember how the Dutch and Greek nay-voters were treated, and up with this they will not put. Threats, inducements and speculative financial prognoses will not work.

We cannot accept an agreement about the future of the country that forbids us to leave without the permission of the other party. That is exactly the situation that leavers have been trying to escape for decades. We want to live under a safe, legitimate rule of law. If the Government cannot or will not drop the backstop and are not prepared to rely on the international law of treaties to assure a way out, we must have a clean break. That would be better than being chained to the decaying body that is the EU. We could abide by WTO rules and let the EU discover that its greed will ultimately lead to its losses.