European Union: Negotiations (European Union Committee Report)

Earl of Kinnoull Excerpts

Monday 16th March 2020 Lords Chamber

Moved by

[The Earl of Kinnoull]

That this House agrees with the conclusion of the European Union Select Committee, that the Council Decision authorising the opening of negotiations for a new partnership with the United Kingdom of Great Britain and Northern Ireland, published in draft on 3 February 2020, and adopted in amended form by the General Affairs Council on 25 February 2020, raises matters of vital national interest to the United Kingdom.

Relevant document: 8th Report from the European Union Committee

[The Earl of Kinnoull (Non-Afl)]

My Lords, I thank those who, despite difficult national circumstances, have signed up for this debate. I extend my best wishes to those who are, for entirely understandable reasons, staying away from Westminster.

This is the first time that the House is debating a Motion under Section 29 of the European Union (Withdrawal Agreement) Act. Section 29 imposes a duty and a power on the European Union Committee of this House. This is in addition to the remit already reflected in our terms of reference, which, inter alia, is to help inform parliamentary and public debate on EU-related matters. The new Section 29 comes into play once we have identified a document of “vital national interest”, and leads on to the production of a report, a Motion and a debate in a relatively short timespan. The document we are concerned with today is the Council’s decision that was adopted on 25 February: the EU’s negotiating mandate for our future relationship.

Before I address the detail of the report, I will say how glad I am that the Government have tabled their Motion today, as we had expressed our regret—at paragraph 29 of our report—that the UK Parliament had not had the opportunity to debate these vital matters to date. The fact that the Government also have put down their Motion sets a good precedent. Can the Minister commit to tabling further Motions in government time as and when there are significant developments in the negotiations?

I thank Michael Gove, who has agreed to appear before us shortly. However, we are still trying to establish clarity and structure as to how the Government will work with committees scrutinising the future relationship negotiations and, importantly, the withdrawal agreement’s implementation. As a committee, we have commented on this several times. It is very important to get it right. Will the Minister commit to working with me in agreeing in short order the structure of this engagement for the months ahead?

Our report is neutral, factual and analytical. We have sought to compare the Council decision of 25 February with the Government’s command paper of 27 February on the future relationship and the political declaration that was agreed by both parties in October 2019. A further relevant item is Article 184 of the withdrawal agreement, ratified in January this year. This places a treaty obligation upon both parties to

“use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration”.

The Council decision is structured very similarly to the political declaration, with some texts simply copied over. Naturally, there are areas where the EU has expanded on the political declaration, a number where the emphasis has changed and some that are omitted. Broadly, however, the council decision is a mark-up and development of the political declaration, and this has facilitated our analysis.

Things have been rather more difficult where the UK’s Command Paper is concerned. During the passage of the withdrawal agreement Act in January, we heard from the noble and learned Lord, Lord Keen of Elie, who said:

“The political declaration ... sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis.” [Official Report, 13/1/20; col. 553.]


This was clarified later by the noble Lord, Lord Callanan, who said that

“the Government’s vision for the future relationship with the EU is already set out … in the political declaration”. [Official Report, 20/01/20; col. 1004.]

Yet the Command Paper is a wholly different structure from that of the political declaration and is instead based on existing EU free trade agreements, such as its Canadian and Japanese ones. This makes it very difficult to conduct a line-by-line comparison with the political declaration, or to trace and explain changes to the Government’s position since the political declaration was settled in October last year.

At paragraph 26 of our report we said:

“It would be helpful if the Government, without prejudicing its negotiating position, could publish a comparative analysis of the Political Declaration and the Command Paper, explaining the changes in its approach.”


Will the Minister commit to provide this in the near future?

The bulk of our report is taken up by a comparison of the UK and EU opening negotiating positions. These are opening positions; it is the haka at the start of a match, and both sides will have left themselves room to manoeuvre. But the current trajectory, as exposed by our analysis, is clear: the two sides are currently diverging, not converging. I draw your Lordships’ attention to four examples.

The first is the overarching structure that the two sides state they are aiming for. The Council decision envisages a single association agreement. The Command Paper proposes a “suite” of agreements within a “broader friendly dialogue”. It would be helpful to hear from the Minister about the strength of feeling that the UK has on this.

The second is fisheries—I have no doubt we will hear more about this in the debate. I stress that this is very much one area where the devolved Administrations need to be involved. The political declaration looks to a new fisheries agreement but lacks detail in this difficult area. Both sides have now set out their vision in considerable detail. There is a lot to be said for the Government’s position, in particular their reliance upon scientific evidence. But it is fundamentally incompatible with the EU’s position, and it is not easy to see how this gap will be bridged.

Thirdly, and equally difficult, is the “level playing field”. The political declaration again lacked detail in this difficult area. Since agreeing the political declaration, the EU has toughened its line, as we set out in paragraphs 107 and 108 of the report. The political declaration contained no explicit reference to continuing UK alignment to EU rules. Instead, it referred to

“appropriate and relevant Union and international standards”.

The Council decision now wants to use

“Union standards as a reference point”

and, more importantly, for EU state aid rules to apply “to and in” the UK. So the EU’s position has hardened, and state aid will necessarily be a key point of disagreement. Again, the widening gap looks hard to bridge, not least given the position of Northern Ireland, where EU state aid rules will apply directly as a result of the Northern Ireland protocol of the withdrawal agreement.

My fourth and final example concerns foreign and defence policy. The Government have set their face against a formal structure and there are no discussions about this in the future relationship negotiations. The terms of reference document notes that while the EU would be open to have them, the UK feels that none are needed. The political declaration on this area states that the future partnership

“should provide for appropriate dialogue, consultation, coordination, exchange of information and cooperation mechanisms.”

To take sanctions as an example, co-ordination is vital if they are to have real bite. It seems to me that effective co-ordination would require at least some structure. Given the political declaration’s language, I ask the Minister to comment.

We expect both sides to produce draft legal texts shortly—indeed, the EU’s text was leaked over the weekend. I have received four copies through separate leaking arrangements. It is 441 pages long. I very much hope that we will be able to scrutinise both texts. The risk is that, on the current trajectory, these texts will reinforce the divergence between the UK and EU approaches and that, in effect, both parties could back themselves into opposing corners.

In closing, I come to time: the ticking clock so often cited in this era of silent digital timepieces. The Government’s insistence on the 31 December deadline and the threat of walking away after June have added greatly to this time pressure. Current world events must be adding further to it. Statecraft might be best served by at least some flexibility here.

I hope that the Minister will offer a considered explanation of the Government’s approach to the negotiations. I certainly do not expect him to give away the Government’s negotiating confidences. However, simply restating their demands and insisting that they will walk away if those are not met is not enough for Parliament in our bounden duty to play our scrutiny role in these vital negotiations. I beg to move.

--- Later in debate ---

[Lord Hamilton of Epsom]

That is the point I am trying to make; this should have been answered in the report. It does not matter where it comes from. Whether our closeness to the EU makes any difference to our relationship with it is questionable. The problem is that we have had the nerve to vote in favour of leaving the EU. Therefore, the EU must redefine the position of a country that leaves so that it can mete out special treatment to that country and somehow discourage others from leaving as well. This report should have addressed these issues. Does it make any difference whether or not a country is close to the EU? Does the size of trade make any difference? I agree that our trade with the EU is probably greater than that with the United States, but the United States does a massive amount of trade too. Nobody is asking for a level playing field with the United States, and they would be told where to go if they tried. We should be questioning these things, as I hoped the report would. Perhaps the noble Earl, Lord Kinnoull, can tell me why this was not included in the report.

[The Earl of Kinnoull]

Certainly I can make some practical points on the very interesting questions that have been raised by the noble Lord. These are vital documents that have become public. There has been no opportunity for Parliament to read a report or have a debate. We were given a power and a duty under Section 29 of the Act. We heard a very interesting interpretation of that, which I am afraid I disagree with. If we were to write and address a separate question, we would have to take evidence or find evidence in the stock of evidence that we have, and there was no time to do that. The second of those documents, the Command Paper, arrived on 27 February. We had a report agreed by people on every position of the spectrum agreed by 3 March. We felt that it was important to bring it to the House immediately so that we could have this very interesting debate.

[Lord Hamilton of Epsom]

The document that I am reading says that this statement was made on 18 February. That is quite a distance from 3 March, when the report went to the printers. I question whether you can reach a decision as a committee unless you have taken evidence. The whole business of whether how close you are to the EU counts or whether the size of your trade is a determinant factor is surely something that the committee can make its mind up about without taking evidence.

[The Earl of Kinnoull]

Section 29 addresses that issue. The Command Paper—a key document in our report—was issued on 27 February. I do not have Section 29 in front of me, but it says specifically that such evidence as we have deemed necessary should have been taken. I am sure we would have loved to read a report about a whole lot of other very interesting questions, but unless we had the evidence on file we would have had to have taken more evidence, which would have slowed things down immensely.

[Lord Hamilton of Epsom]

We could go on arguing about this indefinitely. However, the noble Earl is rather underestimating the intellectual abilities of his committee if it cannot reach a conclusion on this relatively simple issue without taking evidence. I will move on to the amendment in the name of the noble Baroness, Lady Hayter.

--- Later in debate ---

[The Earl of Kinnoull]

My Lords, very briefly, I thank the staff of the committee. As I tried to explain in an obviously unsatisfactory answer to the noble Lord, Lord Hamilton, this was done in a tremendous rush, with lots of late-night oil being burned, because we got the Command Paper on 27 February and the staff and the whole committee had agreed to our report by 3 March. I hope the House feels that we performed our duty in trying to do that.

Secondly, I thank everyone who has spoken in our four and a half hours of debate, which I found fascinating. New points and new thoughts have been put to me—I live in this world 24/7 and enjoy everything—and it has been rich in content.

One gypsy’s warning was given. About half the membership mentioned Northern Ireland and I hope the Minister will reread the excellent speech of the noble Lord, Lord Kerr of Kinlochard, which summarised the issues and got to the nub of them. I should say, as a minor piece of advertising, that we worked together in Northern Ireland and have taken evidence both there and here. Our next work will focus in that direction, and I hope we will have the opportunity to consider what we have found out today on the Floor of the House. This is definitely something that needs attention. It is not an unwinnable position at all, but it needs attention; it is a gypsy’s warning.

I will comment finally on whether our report answers our own question on divergence. I am afraid it does not. There are two elements that one is asking for with divergence: an explanation as to what has diverged, and the justification for why it is right to diverge. In our report, through burning the midnight oil, we have been able to do a reasonable job of explaining what has diverged. We will ask Europeans why they are diverging—I tried to point out that there were divergences on both sides. As scrutineers, we will also need to ask the Government to explain and justify why the divergence is taking place, assuming that there will be future divergence. I am afraid that our question on that is still live. I hope that, when the Government respond to our report, we will get some clues.

[Lord Hain]

I very much welcome the committee’s intention to look at Northern Ireland. For some time, the Government said of the Irish border that it would all be all right on the night and we should not worry about it. They then conceded that there was something to worry about—and the agreement protects the open border, provided it is maintained. But there is still considerable denial about de facto checks and a virtual border in the Irish Sea. I very much welcome the committee’s intention to look at that.

[The Earl of Kinnoull]

I thank the noble Lord for that. Here, I point to the very important intervention on that issue by the noble Lord, Lord Lamont of Lerwick. He pointed out that the situation is quite dynamic. If a free trade agreement results, it will greatly reduce, although not eliminate, the list of problems.

This has been an excellent debate and I thank everyone again. I commend the report to the House.

Motion agreed.