EU: Future Relationship

Earl of Kinnoull Excerpts

Wednesday 23rd September 2020 Grand Committee

[The Earl of Kinnoull (Non-Afl)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Bradshaw, in this thought-provoking debate; I thank the noble Lord the Chief Whip for finding such a substantial slot for this important Motion at a critical period in the lead-in to the final tableau of the Brexit drama. I also thank the Minister for his time in recent weeks, both virtually and physically, and for the courteous and frank way in which he engages with my committee.

In the period leading up to Sunday 6 September, I had thought that the two interrelated strands of UK-EU discussions implementing the withdrawal agreement and the negotiations on the future relationship were on some sort of glide path to actual landing rather than crashing, albeit that the rhetoric between the parties had become sharp and the temperature had risen somewhat. It was on that day that the rumours of what was in the internal market Bill surfaced and boiling point was reached instantaneously.

Perhaps I could step back and start with the withdrawal agreement and its Ireland/Northern Ireland protocol. The protocol is a masterly fudge which left much to the joint committee structure to resolve. We reported on that in June this year, but I remind the Committee that the protocol consists of two pages of recitals, 19 articles and more than 40 pages of the seven annexes, which are really just lists of legislation.

The essential problem that it sought to address was to maintain the Good Friday agreement absolutely while protecting the EU and UK single markets. The soft recitals contain a number of very comforting paragraphs for the UK including

“DETERMINED that the application of this protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland”

and later on

“HAVING REGARD to the importance of maintaining the integral place of Northern Ireland in the United Kingdom’s internal market”.

The hard text of the articles suggests, that in the absence of further agreement at the Joint Committee, every EU customs rule and practice will apply on everything moving to or from Great Britain to Northern Ireland or the border in the Irish sea.

We were critical in our June report of what we saw as a lack of early government pace in implementing the withdrawal agreement. It is now our impression that this has been addressed, but still marrying up the aspirations of the recitals with the hard fallback position of the articles has not yet happened. This failure of process, of statecraft, on the part of both parties is also of great concern and will potentially have damaging consequences for all on the island of Ireland.

The withdrawal agreement as a whole contains plenty of dispute resolution mechanisms but, instead of going down this path, the Government now propose to take powers under the internal market Bill to allow them to disapply parts of the protocol. My committee anticipates reporting on these aspects of the internal market Bill in time for its Second Reading in this House, and we have written to the Chancellor of the Duchy of Lancaster asking for clarification on various assertions made by the UK since 6 September and why the dispute resolution mechanisms under the withdrawal agreement are not used. We expect a response at the end of this week.

The debacle on the withdrawal agreement has spilled over into the negotiations on the future relationship with the EU, and it could not be otherwise. After all, Michel Barnier is Maroš Šefčovič’s deputy and alternate on the joint committee on the withdrawal agreement and the interrelation is shown by the simple fact that the deeper any future relationship agreement between the UK and the EU goes, the lighter the burden should be on the withdrawal agreement customs administration. We reported in March this year on the material available on the negotiating positions of the EU and the UK and compared them with the political declaration. The Committee will recall that both sides had moved their positions away from the mutually agreed, but admittedly not legally binding, political declaration.

While the gap looked quite wide in March, the British position was that everything that they were now asking for was precedentially to be found in other EU international agreements. The EU has pushed back on this with various arguments, and I do not want to rehearse them here, save for one comment made to me by a senior EU official this month. He said that the UK had selected the best-in-class precedents on each of the difficult topics. It is, however, greatly to the credit of the two negotiating teams that, despite the very short time period, the additional problems posed by Covid-19 and the non-discussion of some issues due to the EU tactic of parallelism, they got to the point at the start of September where the finish line was within sight, just about, albeit with a small number of the most difficult issues to be resolved.

As I said, my strong impression was of progress at the start of the month. Nothing was tied down—the principle of nothing is agreed until everything is agreed applies—but the key differences between the two sides in terms of the future relationship were boiled down to state aid and fish—difficult, but, one would think, manageable. What the internal market Bill has done is place trust at the centre of the debate. It raised the already high temperature but also took these two separate but linked strands, each of which is difficult in its own right, and combined them into a single strand. It has doubled both the stakes and the difficulty, and has done so in the most public and confrontational way possible. The glide path for this single strand is much harder to discern and, without a bit of calm on both sides, I fear the prospects of a mutually beneficial landing are not good.

We heard much on the progress of the talks from the Minister in his opening, and I thank him for that. He covered the Northern Ireland protocol in his speech and the internal market Bill provisions that have caused so much uproar. My only question for the Minister is: will he explain why the dispute resolution mechanisms in the withdrawal agreement were not a sufficient safety net so that this extra safety net was necessary?

In closing, I note that with so many challenges facing us, surely it is time for some old-fashioned diplomacy to bring the two great democratic sides together.