Brexit: Negotiations

Lord Hannay of Chiswick Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, the three principal documents that we are looking at today are very different in nature. A sketchy seven-page document on the all-important new relationship between the UK and the EU is so skimpy as to be almost laughable, and there I agree very much with the noble Lord, Lord Bridges. It is more a flyer than a serious blueprint for the future. The document called the Explainer for the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, which I take to be the Government’s sales pitch for the deal they have concluded, is odd too. Paragraph 58 states flatly that all four of the conditions that the Prime Minister laid down in October for the Irish backstop have been met. But at the time she laid down those conditions, the Government were trying to get a fixed duration and a unilateral right to leave the backstop. Neither of those is in the agreement.

Then there are the provisions on dispute settlement in paragraphs 148 and 149. The dispute panel, which is frequently referred to as arbitration, is not an arbiter because paragraph 149 states quite categorically that when a dispute involves the question of the interpretation of EU law, the panel will not decide the matter but request that the European Court of Justice give a ruling. You cannot be much clearer than that, and that is not being free of the European Court of Justice.

The fact is that all these examples demonstrate that beneath the surface there are fatal flaws in the Government’s approach to these negotiations. Divided counsels at home; intemperate drawing of red lines that have subsequently had to be smudged and smudged again; the use of doublespeak all the time. What of the implementation period? Oh dear. In fact, it is a standstill. Everyone knows that a standstill is being proposed.

It is said that we will get back control of our laws, money and borders, but during the transition period—and possibly for quite a lot longer—we get none of that. As a document on the future relationship, it is as yet little more than warm words and worthless waffle. It will not be easy to change this week, and I rather doubt whether very much substantive change can be made. The trade arrangements in the document, for example, are all things to all men. They could come out in a multitude of different ways. That is no doubt necessary since there are a multitude of different views in the Cabinet as to how they should come out. It is not so much a plan as a sales catalogue.

Then there is the triumphant claim that we can negotiate and ratify trade agreements with third countries during the transition period. Which third countries are going to negotiate with us when they do not know what our relationship is with the European Union and how long they will be held up waiting to find out? The best that can be said for this deal is that it is less bad than no deal, and I hope that both Houses will rule out that option.

The key test, surely, is to compare what we have on the table now with what we have around us as a member of the European Union. On that test, despite all the valiant efforts of our negotiators and of the Prime Minister, it fails on every respect. As the Irishman told the traveller who was asking the way, “I wouldn’t start from here”.

--- Later in debate ---

[Lord Keen of Elie]

That might be the normal course, but it is not the invariable course. We have to look forward to how the Government will proceed in the context of the present process, where they present their agreement to the House of Commons, where it will be subject to consideration. I shall not anticipate that outcome, although, like the noble Lord, Lord Desai, I take the view that there is every prospect that the House of Commons, having examined this agreement —I am amazed at how many people commented on it before they could conceivably have read its 580 pages—will find that it takes us forward towards the goal that we were set as a result of the referendum.

[Lord Hannay of Chiswick]

As the noble and learned Lord seems to be drawing to the end of his remarks and has not yet answered my question, I wondered whether he would have a shot at it now. I asked how he would construe the provision that the arbitration panel may not rule on a matter which involves the interpretation of EU law, but must pass it to the European Court of Justice.

The whole of the withdrawal treaty will become European Union law on the day it is ratified. It is no good the noble and learned Lord shaking his head. In its view, it will become European Union law. There will be binding obligations under European Union law. Irrespective of that, how does he construe that provision?

[Lord Keen of Elie]

I am obliged to the noble Lord for reminding me of his question. Under the provisions of the withdrawal agreement, if there is a question as to the interpretation of a point of EU law, the interpretation must be given by the arbitration panel to the Court of Justice of the European Union, which will determine that point. The application of that interpretation of European law will be a matter for the arbitration panel, not the court. That is why we have an independent arbitration panel and it is why I took issue with the way in which the noble Lord sought to characterise the matter. At the end of the day, the issues that the arbitration panel will be addressing will, no doubt, involve mixed questions of fact and law. The panel will be masters of the fact, apply the law and make a determination on that mixed basis.

I am told that I have three minutes left. That being so—I know that noble Lords would want me to have another 30 minutes—I will quickly go through some of the issues which were touched upon but which I have not yet addressed. Many noble Lords talked about a people’s referendum. I hope that I have made the point that that simply does not accord with our democratic principles, nor does it reflect the will of the people when they voted in the referendum. I was quite taken by the observation of the noble Lord, Lord Warner. He said that only 38% of the electorate voted to leave. That is 17.4 million people and, under our democratic traditions, is what we call a majority.