EU Withdrawal

Lord Hope of Craighead Excerpts

Wednesday 13th February 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, if you were to fly from Edinburgh to London Heathrow early on a Sunday evening—as I used to have to do week after week when I was serving in this House as a Lord of Appeal in Ordinary—you would find that shortly before you reach London the aircraft slows down and begins to turn gently to the right and progress in a circle. I believe it is called a holding pattern. We were told it was over a place called Bovingdon, which I was never able to identify from the air. At its western perimeter it extends to Aylesbury, which, from a height of 15,000 feet—first time around—looks quite interesting. You can see the line of the railway and the roadways all progressing in a north-westerly direction. As you come around for a second time and you look down at Aylesbury, you find that nothing has changed. It does not actually seem any more interesting than it was before. The third time around, you become really bored with Aylesbury, which is a delightful place to visit, I am sure, but nevertheless the process of going round and round in this circle is something that engenders various feelings: partly boredom, partly frustration and, for those who have deadlines to meet—a connecting flight, for example—increasing anxiety. One of the features of the holding pattern is that you, the passengers in this aircraft, are never told how long it is going to go on. Of course, an end is reached when there is an announcement, which I think goes like this: “Cabin crew: 10 minutes to landing”. At that point, you can be reasonably confident that the pilot, for her part, knows exactly where she is going.

I have not kept the same count as the noble Lord, Lord Newby, but as far as I am concerned this is the third debate on the agreement that I have taken part in—the third turnaround in the holding pattern. So far as I can tell, we have the prospect of yet one more to come—another take-note debate and another vote, perhaps in two weeks’ time—and we have not yet been told that there are only five or 10 minutes to landing.

I think there is more than a grain of truth in that part of Mr Tusk’s carefully planned outburst, born of frustration, about,

“those who promoted Brexit without even a sketch of a plan how to carry it out safely”,

having something to answer for. As I did in this holding pattern, I feel a sense of increasing frustration, especially at the business we are doing in these weeks and in the forthcoming business weeks ahead. We are being fed on a diet of no-deal statutory instruments that most of us hope will never be used. When we look back, perhaps in six months’ time, we will come to realise that this—no doubt necessary—step has engendered an enormous waste of time and money. Leaving aside the debate as to whether the legislation is necessary or required, there is increasing concern, as we get closer to 29 March, that it will be more and more difficult to put through the legislation that surely has to be in place before Brexit. Like the noble Baroness, Lady Smith, I look forward very much to hearing what the noble Lord, Lord Callanan, has to say as to what that legislation is. I rather agree with the catalogue that the noble Lord, Lord Newby, gave us a few minutes ago.

All that having been said, on how we get out of the maze that surrounds us I remain of the view—which I have expressed at least twice before—that there is really not very much wrong with the agreement itself if the backstop issue can be sorted out in a way that will satisfy those parties that have genuine concerns about it. I for one detect some positive signs in the Prime Minister’s Statement, particularly as I raised the issue of language in an intervention some weeks ago. Particularly interesting, I thought, were the second and third steps she mentioned—that,

“there could be a legally binding time limit to the existing backstop”,

or that,

“there could be a legally binding unilateral exit clause”.—[Official Report, Commons, 12/2/19; col. 731.]

Arguing for these solutions is not going to be easy and may well take time, but it is not quite as far-fetched as some might think that a solution by one or other of those means might be reached. I suggest that the line would be to fasten on the assurances that are already there in the protocol. Article 1.4 states that:

“The provisions of this Protocol are … intended to apply only temporarily”;


I emphasise “only temporarily”. Article 2.1 states that:

“The Union and the United Kingdom shall use their best endeavours”—


I emphasise those words—

“to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part”.

Article 6.1 states that “a single customs territory”, which was at the centre of the arrangement, “shall be established”, but only until the “future relationship becomes applicable”. Especially, there is the overriding obligation in part 1 of the agreement at Article 5: the obligation of good faith.

We need to remember that the obligation of good faith carries much more weight in civil law systems than it seems to do in ours. In civil law, it is a principle about the implementation of a contract which can be enforced. There is no such general concept in English common law, which tends to regard good faith as a rather vague concept, not carrying very much weight. I hope we can build on the civil law concept and the language to which I have drawn attention already. The language is already in the agreement, after all. The case can be built on what is already there. I am glad to hear that the Attorney-General, who tended to underplay these points in his earlier advice, is now an active member of our negotiating team.

If something useful can be obtained out of this, what then? Accepting the agreement still seems to me the best way out of a highly unsatisfactory situation. Those who favour this course can only hope that this will achieve majority support before time runs out. I absolutely agree with the noble Baroness, Lady Smith, in the first part of her Motion, that we must stress yet again that a no-deal situation is wholly unacceptable.

Looking ahead, the political agreement is troublesome—long on aspiration, painfully short on detail. As the Prime Minister herself said, it is not legally binding and provides for a spectrum of outcomes. It is far short of the framework that Article 50 contemplates, and negotiations will not be made any easier by the fact that if we reach that stage we will already be outside the EU.

There is much force in the point made by a former Cabinet Secretary last week that there is a real danger here unless we are given a clearer idea of the eventual destination by those who are supposed to be in charge of our affairs. Much hard thinking has to be done behind the scenes to work out a plan for that stage—not just a sketch of the plan, as Mr Tusk contemplated—that will command majority support as we set off into these negotiations. It will not be easy, but it is a very necessary step.

As already mentioned, time is patently too short for all the pre-Brexit legislation to be put through, whatever one makes of it. Insisting that we leave on 29 March looks more and more absurd, given that there is such a powerful case against a Brexit with no deal. A sharper attention to the timetable is necessary, which is the subject of the second part of the noble Baroness’s Motion. However, if one gives effect to what that Motion contemplates, it will leave us with only four weeks—just 16 sitting days—to get all the business done. The number of days shrinks time and again as we look at them. Surely the exit date must now be postponed.

If we are to ask for that, or if it is offered to us, we must have a clear idea as to what any extension is designed to achieve. I hope that although much effort is still to be concentrated on discussions about the agreement, a real and genuine effort is put in to working out a sound and convincing argument for an extension. That needs to be a detailed plan so that the timing of the extension can be guided by what needs to be done. After all, we cannot expect to be given a second chance. It would be a real tragedy if we were to fall short on that point and end up by default with a chaotic Brexit.