Brexit: Negotiations

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Thursday 3rd October 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I too thank the Leader of the House for repeating a Statement that was written in much more measured tones than the one she was required to read last week. It is thanks to the purported Prorogation having been nullified that Parliament can now hold the Government to account on this important development. It is worth reflecting that if that had not happened, these important proposals would have been brought forward without Parliament being in session to examine them.

It is important that we examine these proposals, and the noble Baroness, Lady Smith, has asked a number of detailed questions on their application and how it is proposed that the arrangements will work. It appears that, from having no borders as a full member of the European Union, the Prime Minister’s proposals would give Northern Ireland two borders. Does the Minister believe that these proposals are better for the economy and, above all, for the security of Northern Ireland than what Northern Ireland has at present? It is important, too, that we closely examine the proposal of a “potential”— the word is there in all the documents—regulatory border between Great Britain and Northern Ireland and customs checks between Northern Ireland and Ireland. Simply to state that position must surely suggest that Northern Ireland’s economy would be in a worse position.

The noble Baroness, Lady Smith, quoted a number of businesses that have expressed considerable scepticism about the proposals. The Northern Ireland Chamber of Commerce and Industry said:

“Businesses are telling us that the potential increased costs will seriously damage … supply lines and indeed business survival.”


There are other quotes that could be repeated from spokespersons who have cast doubt on the workability and cost of these proposals. It would be interesting to see whether the Minister, when she comes to reply, can quote any business or business organisation which, in the last 24 hours, has given support to these proposals. The proposals depend on electronic and, in some cases, physical checks—possibly on business premises. What estimate have the Government made of these added costs to businesses as a consequence of such additional surveillance?

Last night, in response to a point that has been raised on a number of occasions, the noble Lord, Lord Callanan, said that the proposals did not breach Section 10(2)(b) of the European Union (Withdrawal) Act 2018,

“because they avoid checks, controls and physical infrastructure at the border”.—[Official Report, 2/10/19; col. 1765.]

I note his words, “at the border”, but if one looks at Section 10(2)(b) of the 2018 Act, it refers to creating or facilitating,

“border arrangements between Northern Ireland and the Republic of Ireland after exit day which feature physical infrastructure, including border posts, or checks and controls, that did not exist before exit day and are not in accordance with an agreement between the United Kingdom and the EU”.

I believe there is a difference between “at the border” and border arrangements; customs arrangements are by their very nature border arrangements. Can the Minister confirm that the proposals put forward by the Prime Minister conform with the provision, given the clear indication in his Statement that checks could take place at designated locations anywhere in Ireland and Northern Ireland?

The Statement referred to the,

“potential creation of an all-island regulatory zone on the island of Ireland, covering all goods.”

It goes on to say that it would eliminate,

“all regulatory checks for trade in goods between Ireland and Northern Ireland”.

So, of course, there would be checks between Northern Ireland and Great Britain. Will the Minister indicate whether this would be a two-way process? The Prime Minister, I understand, seemed to indicate in a reply that it would be only one way: for goods coming from Great Britain into Northern Ireland. Surely, however, if Great Britain has higher regulatory standards than the European Union, there would be checks for goods coming from Northern Ireland into Great Britain. Can she confirm whether that would indeed be the case, or is the Government’s working assumption that there will never be situations where the regulatory regime in Great Britain would be more stringent than that in the European Union? Have the Government had any discussions with the Scottish Government as to the implications of this proposal for any infrastructure required for such checks at Cairnryan?

The noble Baroness, Lady Smith, referred to the powerful speech yesterday evening by the noble Lord, Lord Empey, who wondered how the DUP could possibly sign up to it. He gave various quotes at col. 1744, quoting DUP spokespersons opposed to any form of regulatory divergence. Why would they? Maybe the secret is that the answer is in the word “potential”, if it is read in conjunction with the consent arrangements, which in the explanatory note provided, refer to consent,

“within the framework set by the Belfast (Good Friday) Agreement”.

There are people in your Lordships’ House who are far more expert in the intricacies of the Good Friday agreement and the procedures in the Northern Ireland Assembly than I am—I am conscious that my noble friend Lord Alderdice is behind me—but I understand there is a procedure called a petition of concern. Is it possible that a petition of concern could be used to ensure that these arrangements never take place, and could be vetoed by the DUP and others before they ever had a chance to take off? Does the Minister think that that enhances the chances of this arrangement being agreed to, not only by the Government of Ireland but by the European Union?

The Written Statement laid by the noble Lord, Lord Callanan, yesterday and reflected in the Prime Minister’s Statement, refers to a revised political declaration. The Statement says:

“In parallel, we will be negotiating a revised Political Declaration which reflect this Government’s ultimate goal of a future relationship with the EU that has a comprehensive Free Trade Agreement at its heart”.


While there is a lot of detail on the arrangements with Ireland, there is very little detail on what arrangements or provisions are sought for the political declaration. It would be helpful if the Minister, when she comes to reply, would indicate what provisions are proposed. Does it mean that the reassurances we had in times past about maintaining workers’ rights and environmental protections may no longer be the case?

The Statement from the Prime Minister also says:

“If our European neighbours choose not to show a corresponding willingness to reach a deal, then we shall have to leave on 31st October without an agreement and we are ready to do so”.


The noble Baroness, Lady Smith, has already indicated how the European Union (Withdrawal) (No. 2) Act might come to the assistance of the Government, but assuming this agreement does not pass, and that the House of Commons does not agree to no deal, can the Minister indicate in detail how the Prime Minister can state that in these circumstances, we shall have to leave on 31 October without an agreement consistent with the provisions of that Act?

Obviously, an orderly departure from the European Union is preferable to a disorderly one. However, we on these Benches do not believe there is any agreement that can be reached which gives us a better deal, in terms of our security, our prosperity, our trade, our jobs, or the future opportunities for our young people than the deal we have at present, as full members of the European Union. That applies to the United Kingdom as a whole and to Northern Ireland in particular.

[Baroness Evans of Bowes Park]

I thank the noble Baroness and the noble and learned Lord for their comments. I reiterate once again that we are committed to and focused on getting a deal, which is why we have brought forward these new proposals. I also remind noble Lords, who will be aware of this, that the House of Commons has rejected the previous withdrawal agreement three times; therefore, to get a deal, we have had to come forward with new proposals.

I reassure the noble Baroness that she is absolutely right: we believe that these proposals set out a reasonable compromise and that they are a broad landing zone in which a deal can take shape. We are pleased that our European colleagues have said that they will look at these proposals. Detailed discussions will now have to take place on them. I can reassure her that David Frost, the Prime Minister’s lead negotiator, is back in Brussels today. Intensive talks will be ongoing and we look forward to continuing them to ensure we can get a deal that everybody is happy with. We are committed to supporting the all-Ireland economy by avoiding checks and infrastructure at the border between Northern Ireland and Ireland, keeping Northern Ireland in the same customs territory as Great Britain and ensuring unfettered access for Northern Irish farmers and businesses to the UK.

The noble Baroness and the noble and learned Lord talked about the political declaration. Yes, we are in negotiations on changes to that. Those negotiations are ongoing and as soon as we are in a position to give further details on them, we will of course do so. I am happy to reassure them both that we are committed to strong standards in the areas of environmental protections and workers’ rights, as the noble Baroness set out. We have an excellent record in this country in these areas. There are numerous examples of where we exceed EU minima, such as on the length of maternity leave, shared parental leave, holiday entitlement and greenhouse gas targets. As I hope we have made clear continually at this Dispatch Box, we as a Government intend not only to maintain existing standards but to improve them. We will continue to hold this path.

The noble Baroness and the noble and learned Lord are right that these proposals will mean changes from the situation that prevails today—this was reflected in the Statement—but our driving purpose is to ensure that we minimise disruption. We understand the concerns of business. The noble Baroness mentioned concerns that have been raised. We will be talking in detail to businesses about the proposals, explaining why we believe there will be minimum disruption and making sure that their concerns are allayed. Part of the way in which we will do this is through our new deal for Northern Ireland. We will be making commitments to help boost economic growth and competitiveness, and to support infrastructure projects—particularly with a cross-border focus—so that we can work with our Irish partners as well to ensure that businesses and consumers across the island of Ireland are happy with what we are planning.

A limited number of goods movements will undergo physical inspections or checks. The system will largely be decentralised. It will be facilitated and minimised by the use of solutions such as electronic filing. We expect there to be a very small number of physical checks needed. These will be conducted at traders’ premises or other points in the supply chain. For instance, the UK currently checks around 4% of customs declarations, with fewer than 1% of these checks being physical in nature. This reflects our robust pre-clearance processes which involve the de-risking of high-risk traders and commodities. Our future system will be underpinned by continuing close co-operation between UK and Irish authorities, based on the existing customs legislations of both parties. It is our intention to make a series of simplifications and improvements to that legislation to ensure that the commitment in the new protocol to having no checks or infrastructure at the border is fulfilled.

The noble Baroness asked, for instance, about trusted traders. One of the ideas put forward is a special provision for small traders to ensure that requirements on them could be simplified. For instance, some small traders could be exempt from processes and paying duty altogether. These measures would need to be carefully designed so that they target the traders most in need of support, while continuing to ensure compliance.

The noble and learned Lord asked about Section 10 of the withdrawal Act. As my noble friend said yesterday, we believe that our proposals do not breach this provision but conform to it.

I can absolutely reassure the House that we are working very hard to get the Northern Ireland Executive back up and running. I think all of us in this House have been frustrated and disappointed about the lack of progress seen. I can reiterate only that this is an absolute priority and we are working extremely hard to ensure that it happens.

The issue of consent was also raised. The exact mechanism for consent will be discussed as part of these negotiations but in the context of the Good Friday agreement. We want to achieve the satisfaction of both communities in Northern Ireland. This is at the heart of what we look to do. We very much hope that these proposals will lead to a further, new and intense way in which we can move forward, so that we can present a Bill to the other place which can get through. Then we can move on and get a deal.

Update to Parliament

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Wednesday 25th September 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Baroness the Leader of the House for repeating the Prime Minister’s Statement, which is more of a rant. Little did I think it would only take two months for us to wish to see the return of Theresa May, comparing this with the kind of Statements she had to read out during her tenure.

My noble friend Lord Newby is in Sydney and asked me to stand in. I apologise that I was not present earlier to ask the Urgent Question in my name. I was on a plane that was delayed getting into Gatwick Airport.

There are lots of things I find difficult to take about the Statement. The Prime Minister rants against Parliament. He describes the legislation that this House passed earlier this month is described as a “surrender Act”. That is insulting. I also find it difficult to accept that coming from a man who, if he really wanted Britain to leave the European Union, could have voted for the deal that was put before the House of Commons. Two times out of three he did not support it, which is indicative of the man. In fact, the one time that he supported the deal it included the backstop, which he now describes as undemocratic. We have a Prime Minister who is prepared to support something when it suits him although he actually believes—or at least says he believes—that it is undemocratic.

Amid the inevitable furore, let us take a step back and consider what, at the core, the Supreme Court’s decision yesterday was about. In giving advice to the Queen, the Prime Minister acted unlawfully and accordingly, the purported Prorogation of the present Session of Parliament was of no effect. As the judgment of the Supreme Court stated, it was,

“as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect”.

That is both profound and momentous, and I believe it requires contrition and humility, not the kind of bombast that we have heard this evening.

As the noble Baroness, Lady Smith of Basildon, indicated, it is a comment on her prescience and that of my noble friend Lord Newby that they decided to have no part in that Commission. I have probably known the Lord Speaker for over 35 years, as I have known the noble and learned Lord, Lord Hope of Craighead, for over 40 years. I do not believe for one moment that they, in the words of the judgment, were,

“carrying out the Queen’s bidding”,

in a way which was not in good faith. I believe that is the case but I am not quite sure the same could be said about the Leader of our House, the noble Baroness, Lady Evans. She has some questions to answer, both as Leader of your Lordships’ House and as one who attended that Privy Council meeting at Balmoral when the unlawful order was made.

In the Supreme Court and the Inner House of the Court of Session, the judges placed much weight on the fact that in neither the Cherry case nor the Miller case was any explanation given by the Government as to why an exceptionally long period was required for this purported Prorogation. The Statement from the Prime Minister refers to,

“the exact same process as my predecessors”,

but the evidence of Sir John Major in the Supreme Court blew out of the water the proffered explanation that it was needed to prepare a Queen’s Speech. Does the noble Baroness have any other explanation? She must have known from precedent that five weeks was not needed. Indeed, when I asked her why no recess dates had been set for the conference season earlier this month, she told me, “There’s always been a conference recess for as long as we can remember”. For as long as we can remember, there have never been five weeks needed for a Prorogation. Did she, as the noble Baroness, Lady Smith of Basildon, asked, have sight of the legal advice? Did she ask for sight of it? As a member of the law officers’ trade union, I uphold the convention that one should not lightly disclose law officers’ advice. But as the noble Baroness, Lady Smith, has said, the fact that legal advice was sought in itself suggests that to seek a Prorogation in these circumstances was on dodgy ground.

In response to the earlier repeat of an Urgent Question to the Attorney-General by the noble Earl, Lord Howe, my noble friend Lord Campbell of Pittenweem and the noble Lord, Lord Browne of Ladyton, asked why no Minister—let alone the Prime Minister—had sworn an affidavit to put before the court to explain the reason for such an exceptionally long period of Prorogation. They asked whether it was because they did not wish to perjure themselves. Can the noble Baroness explain why no affidavit was forthcoming from either the Prime Minister or any member of this Government?

Reading the judgment, there are two key features in why the Supreme Court reached the view that it did. It believed that the sovereignty of Parliament was being undermined if the Prime Minister could advise a Prorogation for an exceptional length of time; and that Parliament has a key role in holding the Executive to account, which would be frustrated by an exceptionally long Prorogation. There is of course a distinction between Prorogation and recess: during Prorogation, committees cannot meet and Parliament cannot be recalled, except in very exceptional circumstances. The subject matter of the Statements and UQs that we have had today—on the collapse of Thomas Cook, Operation Yellowhammer and the situation in Iran, to which one could add issues such as the granting of an arms export licence to Saudi Arabia in contravention of a court order—illustrates just how crucial it is that Parliament is able to hold the Government to account. Yet this Government wanted to frustrate that for five weeks.

In paragraph 61 of the judgment, the Supreme Court says:

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks, from 9 or 12 September until 14 October”.


Ministers have rightly said that they will respect the Supreme Court’s judgment, but as the Statement from this Prime Minister makes clear, they then say that they think the Supreme Court got it wrong. Will the noble Baroness, Lady Evans, tell us, specifically, which parts of the Supreme Court’s judgment are wrong and why? Does she support the sovereignty of Parliament? Does she support the idea that Parliament should hold the Executive to account? Does she accept that Prorogation for such an extended period of time would have undermined both these cardinal principles of our constitution?

While the Supreme Court did not speculate on motive, the Inner House of the Court of Session, reaching the same conclusion, did consider motive. Lord President Carloway, at paragraph 53 of his judgment, said:

“The circumstances demonstrate the true reason is to reduce the time available for the scrutiny of Brexit at a time when such scrutiny would appear to be a matter of considerable importance”.


The Supreme Court neither disapproved nor disavowed the findings of the Court of Session. It is clear that senior judges did not find credible the public explanation of the Prime Minister of why he sought a Prorogation of such exceptional length; it is quite a staggering conclusion for the court to reach and quite an indictment of this Administration. Will the noble Baroness confirm, given this Administration’s track record, that if no deal is reached by 19 October, the Prime Minister will abide by the law passed by Parliament just before the attempted Prorogation—no ifs, no buts, and no second letters?

I understand that this morning Mr Michael Gove described the Prime Minister as the Pep Guardiola of British politics. Let us look at his record since he came into office just two months ago: parliamentary by-elections—lost 1-0; House of Commons votes—lost 6-0; appearances before the Supreme Court—lost 11-0. If Pep Guardiola had that record, I am sure that he would be considering his position—it is time the Prime Minister did likewise.

[Baroness Evans of Bowes Park]

I thank the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Wallace, for their comments. First, can I say that this Government have the highest respect for our judiciary? The independence of our judiciary is a fundamental part of the rule of law and the basis of our democracy—I am very happy to put that on record.

The noble Baroness, Lady Smith, was, of course, right to say that the Supreme Court judgment was unanimous, but she will also recognise there were disagreements in relation to these complex matters. The divisional court, led by the Lord Chief Justice, agreed unanimously with the Government’s position, as did Lord Doherty in the Outer House of Scotland. We were disappointed in the end that the Supreme Court had a different view, but, of course, we entirely respect their judgment, and they had every right to do so.

The noble and learned Lord, Lord Wallace, asked about an affidavit. The reasons for the decision were set out in the documents that were provided to the court, and the Government’s written case remains available on the website. The court did not say that the Prime Minister should have given evidence, and my understanding is that it would have been unprecedented for him to have done so. Ultimately, the court did not find the evidence justified Prorogation—we regret that, but that is a matter for the court to decide, and they have done so. The noble Baroness, Lady Smith, asked about my attendance in the Privy Council. Before attending the meeting of the Privy Council, I both sought and received confirmation that in the legal opinion of the Attorney General, the Prorogation was lawful and so I believed it was appropriate for me to do my duty as a Privy Counsellor as I was asked to do. I also took part in the Prorogation ceremony as part of my role as the Leader of the House, and I can say I did so in the utmost good faith. The noble and learned Lord, Lord Wallace, also asked about whether the Government would comply with the law: we will.

G7

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Tuesday 3rd September 2019 Lords Chamber

[Baroness Evans of Bowes Park]

I am very pleased that every delegation supported our campaign to give every girl in the world 12 years of quality education. Indeed, the Prime Minister also called on G7 countries to dedicate more of their aid budget to education, which currently stands at less than 2% of global humanitarian aid. It is obvious that, with more investment and support going in, all the very important issues that the noble Baroness raised can be properly addressed. I fear I will need to get more information on the details of the programmes we support and others: I will write to her, as I will on a couple of other issues.

[Lord Wallace of Tankerness (LD)]

My Lords, the noble Lord, Lord Cormack, reminded us that the Prime Minister voted earlier this year for the withdrawal agreement, which included the backstop. Yet he has said subsequently, and indeed repeated in the Statement, that the backstop is anti-democratic. Are we to believe, therefore, that we have a Prime Minister who is prepared to vote for measures that he believes to be anti-democratic?

[Baroness Evans of Bowes Park]

No, I think this shows that the Prime Minister is committed to getting a deal. He voted for one, but the House of Commons did not. He is now trying to get one and to ensure that we can present a deal to the House of Commons that MPs can support, in order that we can leave the EU with a deal.

Leaving the European Union

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Monday 26th November 2018 Lords Chamber

[Baroness Evans of Bowes Park]

As I said, the withdrawal agreement contains a legally binding commitment to use best endeavours and to ensure that we negotiate in good faith. There will be a mechanism for resolving disputes, first through consultation at the joint committee, with the aim of reaching a mutually acceptable resolution. If that does not work, after three months either party can refer a dispute to independent arbitration. It is there in legally binding text, and that is how we believe both sides will go into the negotiation.

[Lord Wallace of Tankerness (LD)]

My Lords, will the noble Baroness the Leader of the House confirm that, if a matter is referred to independent arbitration and if any issue of European Union law should arise, it should be referred to the Court of Justice of the European Union for a binding ruling, with the arbitration panel obliged to settle a dispute in accordance with the ruling given by the CJEU? That makes a nonsense of saying that the CJEU will not have any relevance after Brexit.

[Baroness Evans of Bowes Park]

The arbitration panel would be the body to consider, decide and resolve disputes. The panel will consider a dispute, make a ruling based on findings of fact and reach conclusions on questions of law or of interpretation of the agreement, other than on points of EU law. If the panel decides that there is a question of EU law which requires interpretation, it will submit a question to the CJEU, but it is for the panel alone to decide whether to refer that question or not, and the resolution of the dispute remains solely with the arbitration panel.

European Council

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Monday 18th December 2017 Lords Chamber

[Baroness Evans of Bowes Park]

We certainly are working closely with our European partners and are committed to playing our full part in tackling the shared challenges posed by the global migration crisis. As the Statement said, we are committed to maintaining a maritime presence in the Mediterranean. The Royal Navy has intercepted 172 smuggling boats and saved more than 12,000 lives since Operation Sophia began. We are continuing the deployment of the Border Force cutter to the central Mediterranean to support the search and rescue activities under Operation Triton. To date, cutters have rescued more than 13,000 migrants across the central Mediterranean and Aegean. We are taking our responsibilities extremely seriously and are working with the EU in terms of looking at where these migrants are coming from and trying to help stabilise states. We take this extremely seriously and will continue to work with the EU, the UN and international partners to make sure that we work together to tackle this problem, because together is the only way we will achieve it.

[Lord Wallace of Tankerness (LD)]

My Lords, in her Statement on 23 October, the Prime Minister referred to,

“a time-limited implementation period based on current terms”.—[Official Report, Commons, 23/10/17; col. 25.]

Of course, today she has said that if we Brexit in March 2019, we would not be members of the European Union after that. To pick up on the question asked by the noble Baroness, Lady Smith of Basildon, if we fast forward two years from now to the annual Fisheries Council to determine total allowable catches, will there be a British Minister at the table to defend British fishing interests? How does the noble Baroness see this working?

[Baroness Evans of Bowes Park]

As the Prime Minister says, it will depend on the next phase of negotiations, but currently we expect the implementation period to be two years.

Brexit: UK Plans

Debate between Baroness Evans of Bowes Park and Lord Wallace of Tankerness

Monday 9th October 2017 Lords Chamber

[Baroness Evans of Bowes Park]

We are all hopeful that we will be able to move forward together in a constructive manner. That is certainly what we intend.

[Lord Wallace of Tankerness (LD)]

My Lords, how do the Government anticipate that the common fisheries policy will work out in relation to the United Kingdom during the transitional period?

[Baroness Evans of Bowes Park]

We are committed to leaving the common fisheries policy and developing arrangements for fishing that can create a more profitable and self-sufficient seafood sector. Taking back control of our waters means that we can decide how we allocate access to our waters and our fisheries. Any decisions about giving access to vessels from the EU and other coastal states will be a matter for negotiation.