Brexit: Withdrawal Agreement and Political Declaration

Lord Howard of Lympne Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I am not a natural rebel. I can count on the fingers of one hand the number of times that I have rebelled against my party in the 35 years during which I have had the privilege of serving in Parliament, and all those were matters of hugely less importance than the issues before your Lordships today, so I make this speech with a heavy heart.

I was one of the 17.4 million people who voted to leave the EU, and I did so because I wanted my country and its Parliament to take back control over our nation’s future and its destiny. I am afraid that the agreement before your Lordships’ House today does the opposite of that.

As a member of the European Union, we have the right, under Article 50, to leave. It is an untrammelled right—we can exercise it, and are exercising it, unilaterally, without having to ask anyone’s permission to do so. Under the backstop—it constrains our freedom of action in a large number of areas, over which we would have no control—we would be unable to leave without the permission of the European Union or perhaps, just possibly, the panel of arbitrators. The noble and learned Lord, Lord Goldsmith, has just executed an extremely effective job of demolishing the role of the panel of arbitrators, but let us assume for the purpose of the argument that it has a more expanded role. Clearly, the Government thought that its role was of great significance, otherwise they would not have gone to the lengths of inserting so many provisions relating to the panel of arbitrators into the agreement.

I have never attained the pinnacles of judicial and legal expertise possessed by those Members of your Lordships’ House who are entitled to be called “learned”. However, I did practise at the Bar for 21 years, and it taught me one thing: judges and arbitrators can get things wrong. It is because judges get things wrong that we have a Court of Appeal, and it is because the Court of Appeal gets things wrong that we have a Supreme Court. Yet the wording of Article 180.2 of the agreement is stark. It says that:

“Any ruling of the arbitration panel shall be binding”.


Not only is there no provision for appeal, but the article actually prohibits the publication of any dissenting opinion.

The agreement’s supporters say that we will never get into the backstop. They may be right, but they may not be. A large number of the 585 pages of the withdrawal agreement are devoted to the backstop. It is reasonable, to put it mildly, that all that midnight oil would not have been devoted to them if both sides thought this was an entirely academic exercise. The agreement’s supporters would say that we need not worry about the backstop, because it is not in the interests of the European Union to keep us there. Indeed, we heard that argument from my noble friend Lord Hodgson a few moments ago. I ask this simple question: if it is not in the interests of the European Union to keep us there, why will they not agree to a time-limited backstop? Nothing could be easier if it is not in their interests to keep us in the backstop.

I am afraid the evidence is mounting that there are European leaders only too keen to use this as leverage to pressure us. The Prime Minister of Spain has hinted he may do it on Gibraltar. The President of France has said he wants to use it to get rights over fishing. When this was put to my right honourable friend the Secretary of State for the Environment in another place, he said that the President of France was wrong. He said it in French for good measure. I am a great admirer of my right honourable friend the Secretary of State, and not only because of his command of the French language, but should there be a dispute it will not be him who decides whether the President of France is wrong. It will not be our Prime Minister, our Government or our Parliament; it will be the European Union or, just possibly, a panel of arbitrators. One of the ironies of the referendum debate is that those of us who voted to leave are constantly being told what we meant or did not mean by those who voted to remain. I can say one thing without any fear of contradiction: the 17.4 million people who voted in 2016 to leave the European Union did not do so to place their future, or the future of our country, in the hands of a panel of arbitrators.

The noble Lord, Lord Kerr, described the agreement on Monday as a “humiliation”. In the debate in your Lordships’ House two weeks ago, my noble friend Lord Lamont quoted Carl Baudenbacher, the former president of the EFTA Court, who said:

“It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this”.


I cannot think of any other country—except, perhaps, in the immediate aftermath of a defeat in war, or in the face of an imminent defeat of that kind—which has been prepared to give away so much control over such a wide area of its future affairs to a panel of arbitrators.

Your Lordships may perfectly reasonably ask: what is the alternative? This is what should be done: the Government should recognise that this deal is dead. I was encouraged to be told on Monday by my noble friend the Leader of the House that conversations are taking place between the UK and the European Union on preparations for Brexit without a formal withdrawal agreement. Those conversations should be intensified and expanded. They should encompass a series of ad hoc, temporary arrangements to minimise and if possible eliminate any disruption which might otherwise take place on 30 March. I would go further and declare that, for a period of 12 months from 30 March next year, the United Kingdom will not place any tariffs, tariff barriers or obstacles against the importation of goods and services into the United Kingdom from the European Union. I hope that it would reciprocate, but we should do it even if it does not. Finally, I would use those 12 months to negotiate a free-trade, Canada-plus agreement with the European Union along the lines offered by President Tusk earlier this year.

Obviously, I cannot vote for either the second Motion or the amendment that will be put before your Lordships later, because they would conflict with that objective. We should never have allowed ourselves to get into these difficulties. There is a way through, but it is not the agreement before your Lordships today.