European Union (Withdrawal) (No. 6) Bill

Lord Howell of Guildford Excerpts

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Howell of Guildford (Con)]

My Lords, this Bill will of course go through, but any idea that it will solve all our problems can dismissed here and now. We have already heard of some of the dilemmas ahead and they will be not only for my party and the Government but for the Labour Party, as the morning newspapers and broadcasts make clear. There are some difficult questions for Labour to resolve, which it has not yet done.

In the light of this difficulty for all the parties, there is, possibly, a way out that begins to have some light in it for remainers and remoaners, leavers and believers—in fact, for all of us. That could occur on or around 17 October, with the possibility, at present dismissed by almost everybody, of an amended withdrawal agreement with—using the words of Monsieur Macron, Angela Merkel and, although perhaps not the Taoiseach himself, many people in the Republic of Ireland—the “unnecessary” backstop modified or removed.

The noble Lord, Lord Newby, eloquently and again and again, says there is no hint of alternatives. There are massive alternatives that have been worked out with huge authority by a vast range of people—by consulting border operations throughout the world, by taking examples everywhere, by drawing back into the history of the Northern Ireland border in immense detail, by analysing precisely the kind of traffic going across every day and by taking into account that we remain, with the Republic, in the common travel area and outside Schengen. These details exist. It suits everybody involved at the moment to say that there are no details. It suits Monsieur Barnier to say that there is no hint of an alternative. He is quite wrong. He is bound to say it for the moment, but there are massive volumes containing immense detail, which could provide the alternative to the backstop. The date is 17 October.

[Lord Krebs (CB)]

One is very interested to hear about this massive detail. I may be mistaken but I read in the paper that, when the Prime Minister met Chancellor Merkel a few weeks ago, it was agreed that he would produce his alternative plan within 30 days. One wondered why he needed 30 days if the plan already existed. Perhaps the noble Lord could tell us—if he knows—whether Mr Johnson has revealed this cunning plan to Chancellor Merkel and whether she has accepted that it is an appropriate alternative to the backstop.

[Lord Howell of Guildford]

My Lords, the word “reveal” is a misnomer. The full reports of the alternative arrangements group exist. The summaries exist. All the background material is available for anyone to read. To what extent it has been pressed by government negotiators in Brussels—Mr Frost and others—I do not know. You do not need to reveal something that has already been published. These things have been worked out and are available. I am not saying that anyone will agree to them, and it pays people at the moment to pretend they do not exist or have not been revealed. They have and they are there.

[Lord Patten of Barnes (Con)]

Perhaps I can encourage my noble friend to help the House on one point. Can he name anywhere in the world where different customs unions share a border, without the sort of hard border which is of concern to everyone? Just name any one. The United States and Canada: no. Switzerland and France: no. Where are there two countries with different customs unions side by side that do not have a hard border?

[Lord Howell of Guildford]

I think Members of this House and others have visited the Norway-Sweden border.

[Noble Lords]

No.

[Lord Howell of Guildford]

My noble friend is enormously experienced in these matters, particularly in Northern Ireland. He, above all, knows that the Northern Ireland/Republic of Ireland situation is unique. There is nothing like it in the rest of the world. I was involved with Mr Whitelaw in trying to reinforce the military side of the border to stop the Provos coming up from Dundalk. We tried, but it did not work because there are a thousand other outlets. Even if people wanted to recreate a visible border, it would not work. My noble friend knows perfectly well that the Irish situation is unique and that there are, therefore, opportunities for unique solutions. I am not saying that it will be admitted. I do not expect even my noble friend to admit that anything I am saying at the moment is correct. The facts, the documents and the expertise on many other frontiers are there. I do not have all the details in front of me at this moment to quote in the debate. They are there for reading and I am sure he has read them.

That was my first point. There is a way out if we are careful and sensible and deal with the matter in a mature way. I am not that hopeful it will happen, given all the interruptions, but there we are.

[Lord Liddle (Lab)]

I am sorry to correct the noble Lord, for whom I have the greatest respect. When I was a member of your Lordships’ EU Select Committee, we took evidence from the border people in Norway and Sweden. To the best of my recollection, the conclusion was that they were very proud of the smoothness of their arrangements, but that every lorry was delayed by at least 10 minutes at that border.

[Lord Howell of Guildford]

I do not want to continue with this, but if the noble Lord—for whom I have great respect as well—cares to read the alternative arrangements report, he will see that the detailed analyses of what goes on at various borders are examined by experts. The evidence is there. There are pages of it. He will see exactly which bits could apply to the border in Northern Ireland and which do not.

[Lord Adonis (Lab)]

I have read that report and none of the proposals is credible, which is the reason Her Majesty’s Government have not published those proposals as their own.

[Lord Howell of Guildford]

I simply repeat: the alternative arrangements documents are there and go into considerable detail. They can be dismissed or agreed to, depending on your state of mind, but they are a way out. I now want to say something on a different area. Are there any other interruptions before we leave this? There is one more.

[Baroness Altmann (Con)]

I have enormous respect for my noble friend and what he has been trying to achieve in this House. If we are honest, the hard border and any mitigations are trying only to make a hard border slightly less hard. The only way, if we leave the customs union and single market, to solve the problem in Ireland is to have a border down the Irish Sea and cut off Northern Ireland. Is that what the Conservative and Unionist Party wishes to do?

[Lord Howell of Guildford]

That statement—“the only way”—again reveals the Manichean approach. There are already controls on livestock and weapons down the Irish Sea. They already exist. There are controls all around the invisible border to Northern Ireland, so this constant either/or is misleading us and guiding us away from sensible compromise solutions, which a calmer atmosphere would soon reveal and resolve.

[Lord Framlingham (Con)]

I am afraid the arguments today are already becoming as circular as ever. Is the truth not that remainers will not accept the position, just as leavers have their views too? What my noble friend is saying is absolutely true: those who really understand it know there are ways of doing this, but the baying leavers will not accept it. I urge my noble friend to save his breath and move on to something else.

[Lord Howell of Guildford]

I thank my noble friend for that encouragement. I turn now to a matter addressed to my own party, which will possibly produce more agreement opposite. The so-called Cummings purge is a major political blunder. These blunders happen at the end of a sequence of earlier blunders. You can watch how earlier mistakes and errors, blunder after blunder, lead to a point where, suddenly, there seems no choice and the new folly is committed. The new folly of my party is to reduce its membership by 21 and exclude two ex-Chancellors, an ex-Deputy Prime Minister and my dear friend Sir Nicholas Soames. I just hope it will pass. I hope Rory Stewart’s view that this will pass is right, and that they are restored to the party. This is again part of the Manichean tone in which matters are presented, when everything is either right or wrong, in black and white.

Delay of the Bill will solve nothing, although it seems a way out. In another three months, we will be back to exactly where we were before. The referendum so beloved of the Lib Dems, even if we get it through, will not solve anything either. An election is bound to come sometime, but I say to my noble friends that, whether it comes or not, normal times will never return. We are living in a completely different digital age, in which populism is in power. Both parties—mine and the great Labour Party—will have to reunite and change on entirely different terms. Neither can build on the basis of the old dogmas. If that is the one lesson that emerges from this unhappy situation, let us at least take account of it.

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[Lord Mandelson]

My Lords, it is a pleasure to follow the noble Baroness, with whom I have seen eye to eye on almost all business questions—certainly the majority of them—in the past.

Before I comment briefly on the Bill itself, I shall make two preliminary remarks. The first is that, as a former Northern Ireland Secretary, I strongly endorse the remarks and arguments made by my noble friend Lord Hain. He was not indulging in hyperbole. This is reality; it is real-life politics in Northern Ireland. There is an enormous amount at stake and any of us would be very ill-advised if, for the sake of boredom with the subject, including the backstop, we were simply to pass over what he has said. There are genuine risks involved in relation to peace in Northern Ireland.

Secondly, I will comment on the intervention of the noble Lord, Lord Hayward. From the discussions I have had in national capitals and in Brussels, I can confirm that he is absolutely right that no proposals have been made by the British Government that are negotiable and would lead to a deal being concluded in October, November, December or any other month. However, certain ideas are being canvassed which concern the sectoral coverage of the backstop, its possible duration and the conditions surrounding both those aspects of it. The reason in my view that they have not been tabled is that a judgment has already been made that they will be unacceptable to those with whom we are going to negotiate. They involve a compromising and an undermining of the backstop which would negate its purpose and effect.

Therefore, the chances of what is being considered in Whitehall and was taken to Brussels by David Frost —who is a credible interlocutor and diplomat representing the British Government—being accepted in Brussels are hovering on zero. That is why we cannot take at face value the Prime Minister’s statement that he is negotiating in good faith. I do not believe that he wants to negotiate a deal. I think he would like to present, as it were, a fait accompli—something that he would ideally like to see—but not to negotiate. That is simply not going to happen.

I support the Bill for one reason, which is that crashing out of the European Union on 31 October without a deal would be, to put it mildly, highly sub-optimal for our country. It would prevent us from securing the continuity of our enforceable trade rights in what is our biggest export market in the world; it would prevent us from securing the continuity for many businesses operating in the European market of their enforceable business contracts. There are a host—a waterfront—of pacts, agreements and laws that underpin our commercial and related relationships with the European Union that have been built up over half a century, all of which we would be unable to guarantee the continuity of from the stroke of midnight on leaving the European Union without a deal.

I am not saying that aircraft would fall out of the sky or that many of these agreements would simply disappear and dematerialise before our eyes. However, over time they would come to be contested. There would be people, for a variety of reasons, wanting to pull threads and then pull a rug from underneath a variety of these pacts and agreements. If we were to leave without securing their continuity, we would create the risk of huge damage and jeopardy to our commercial relations, and therefore to our economy and to the jobs, livelihoods and investments of hundreds of thousands of people in Britain.

It would also do something else: it would destroy what lingering goodwill exists in Europe towards us. If we were to crash out and leave in such a disorderly way, it would inflict great damage not only on our own country but on all member states of the European Union. Such an act would make their willingness and our ability to negotiate a future free trade agreement between ourselves and the European Union infinitely harder to achieve. For that reason also, we should avoid crashing out without a deal.

[Lord Howell of Guildford]

I am listening to the enormous expertise of the noble Lord and indeed I am in considerable agreement, particularly about the crash-out, which in a way I am rather happy this Bill possibly postpones and possibly avoids. I am listening also to the great expertise of the noble Lord, Lord Hain. But are they both quite sure that the enormous amount of work that has been done on volumes such as the one that I have here on alternative arrangements in the unique circumstances of Northern Ireland, which is quite unlike any other border in the world, are non-starters before they are even discussed in Brussels? Is he quite sure that all the proposals for special regions, trusted traders and new arrangements for all-Ireland animal livestock and so on can be thrown out of the window before we even start? I am not so sure myself.

[Lord Mandelson]

Nor am I. I am not so sure that we should just push them all to one side as though they have absolutely no potential whatever. That is not my view. My view is that they are not realisable in the foreseeable future and that, in the meantime, we would put the Good Friday agreement and the peace process in Northern Ireland in great jeopardy in a way that would be unjustified and unforgivable. There is a very interesting discussion to be had about the future. It depends on certain modalities, technology and related approaches that have potential—I fully accept that—but they are not for now; in my view, they are for the future.

There is not only the obvious economic, business and commercial argument to be had concerning people’s jobs and livelihoods that are at stake; in my view, there is also a very strong democratic argument to which we should attach great importance in our consideration of this Bill. Quite simply, it is that there was no mandate from the 2016 referendum for a no-deal Brexit. I know that people will say that it was not explicitly ruled out, but to all intents and purposes it was ruled out by the fact that nobody referred to it, nobody explained it, nobody justified it and nobody set out the arguments for it. Not one of the advocates of the leave campaign ever entertained the idea that this would be the outcome of our leaving the European Union.

Such a possibility was almost literally airbrushed out of the picture by the promises that were made by the advocates of the leave campaign—that getting a deal would be “the easiest in history”. Plus, there was a later guarantee—I remember that “guarantee” was the word used by No. 10 in repeating what the then Brexit Secretary, David Davis, had said. The precise words used were that we would have the “exact same trade benefits” after we left the European Union. Not only has that promise of the easiest trade deal in history turned out to be wrong and unfulfillable but the exact same trade benefits will, as we know, be nothing of the kind. They cannot be anything of the kind. We will sustain frictionless trade that is exactly the same as the trade benefits that we have at the moment only if, at the very least, we stay in a customs union with the European Union and fully in the single market. That is the only way in which those promises that were made—that guarantee put forward by No. 10 —could possibly be redeemed, yet it is firmly, consistently and explicitly excluded by the Government.

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[Lord Patten of Barnes]

My Lords, I had not meant to intervene in this debate—and that is true. Having sat through much of the night, benefiting from the wisdom of my noble friends Lord True and Lord Dobbs while envying my noble friend Lord Forsyth—by then in his sleeper on the way to Scotland as the rest of us dealt with the filibustering that he had launched with his usual panache—I thought that I had probably had enough of all of this. However, one of the dangers of coming in and listening to a debate is that one is provoked into wanting to make one or two contributions. This is particularly the case whenever I listen to my noble friend Lord Howard. I can honestly say that, while I have disagreed with him on many subjects over the years, I have never doubted that he was anything other than a good chap.

I will come back to good chaps in a moment. There were two points I wanted to make as prequels to three points—which I will cover very briefly because they have been dealt with admirably by the noble Lords, Lord Hain and Lord Mandelson.

I want to endorse what was said earlier about the departure from the Government of the Higher Education and Science Minister, Jo Johnson. I will not make the obvious points about Johnsons and one’s preference. However, Jo Johnson was at my university, where I am now a chancellor. I did not always agree with the legislation he brought forward on higher education in the last Session, but he was an outstandingly good and conscientious Higher Education Minister, as well as very intelligent. He is a real loss to the Administration, and I hope he is not a loss to public service for family reasons. He is a very good man.

Secondly, I want to identify myself with the remarks made by my noble friend Lord Cormack earlier about the treatment of some of our former, present colleagues. I am sure it was inadvertence which meant that my noble friend Lord Howard did not refer to them either. We were both colleagues of theirs in government. I am sure he shares my high view of their public integrity and public service. My noble friend has known one or two of them even longer than I have—he was at Cambridge with them. I am surprised that we did not hear about the appalling and hypocritical way in which they have been treated. I hope that will be undone as rapidly as possible; it was not Mr Cummings’s or Mr Johnson’s finest hour.

I shall briefly make three points, which have been touched on in particular by the noble Lord, Lord Mandelson. The first is on the trade negotiations. We have been told again and again that the reason this Bill is so suspect is that it cuts the Prime Minister off at the knees in the negotiations over our future relationship with the European Union but, as my noble friend Lord Hayward pointed out, the question is: what negotiations? There is no rustling in the shrubbery. You ask the President of the Council, the President of the Commission, the President of the French Republic, the Chancellor of Germany and the Taoiseach about the proposals that justify our Prime Minister in his observation that things are going well and the Government are putting forward all sorts of bright ideas, but there is no reply. It would be nice to hear from the Front Bench later this evening what the state of play is in these negotiations and what we are proposing—presumably somebody knows. Maybe we should just take it from Mr Cummings, the éminence grise in the regime—maybe one should call him the éminence—who has brought a new approach to personnel management at No. 10, that all this is a sham. But if it is a sham, that is all the more reason for having this legislation in place. If it is not a sham and we are making terrific progress, it seems very likely that we need rather more time to complete the progress, hence one of the advantages in a reply to a question posed earlier, and hence the advantage of a few more months being built in, if absolutely necessary.

The second point, related to that, is touched on by the “good chaps” theory, which, to be operable, needs a sense that the people you are dealing with are good chaps. One thing we know, and which underpins some of the discussions about when there should next be an election, is that there is a strong sense and suspicion—I put the point no more firmly than this, but I use a word used by my right honourable friend Kenneth Clarke—of the disingenuousness of the Prime Minister. Maybe there are those who are not absolutely sure that he and the people who surround him are good chaps. We know that eight of them voted again and again as bad chaps against the proposals that the last Prime Minister brought forward. One reason we have had this long period of delay is the activities—the high productivity rates—of the ERG during the negotiations so far.

There is another aspect of the “good chaps” thesis of the noble Lord, Lord Hennessy, which needs touching on. I thought my noble friend Lord Howard was rather curious in the division he drew between the Executive and the legislature in international affairs and international negotiations. I, like him, was a Secretary of State for the Environment. I used to go to international negotiations on the environment with the reports of Select Committees and with legislation from the House of Commons determining what I should try to do about ozone-depleting substances, or water or air quality. When I was a Development Minister, I had to operate within the terms that the House of Commons had agreed on the proportion of our GDP to be spent on overseas development. I had to comply with what the OECD said about that as well. When I was a colonial despot, I had to implement what Parliament had decided about the joint declaration and the terms within which Britain should exercise its stewardship in our last colonial dependency. So do not tell me that there is an absolute division between what Executives can do abroad and what the legislature has a right to determine.

My final point is about Northern Ireland. I shall not repeat the points made very well by the noble Lords, Lord Hain and Lord Mandelson, nor shall I repeat what I have said on other occasions in this House about the Northern Ireland border. It is a sign of the beginning of dementia when you start quoting your own speeches. However, in the second speech I made on the withdrawal Bill, I said that one of only two interventions made by the last Prime Minister during the referendum campaign was about the appalling difficulties of managing the border if we leave the European Union, which was true. Two points have regularly been made about the border. First, there are terrible difficulties as soon as you leave the single market for the customs union. Some of us posed a question to the intellectually sprightly Lord, my noble friend Lord Howell, about where else in the world one could find two countries side by side with different tax regimes and different customs unions that do not have a border, and the answer is that there are none. There are ways of making it easier to deal with a border, but when you have different customs unions and different tax arrangements side by side, there is no way that you cannot have a border. The problem with that in Northern Ireland is very simple.

[Lord Howell of Guildford]

There are different arrangements either side of the border; there have been for years. The VAT is different, the currencies are different, there are all sorts of differences, and many similarities. You cannot just brush these things aside with generalities.

[Lord Patten of Barnes]

The point I continually make is that absolutely everywhere, whether it is in Switzerland and France, Norway and Sweden or the United States and Canada, if one is in a different customs union from one’s neighbour, there is a hard border.

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[Lord Wallace of Saltaire]

I am sorry. I have not read many of the noble Lord’s novels. I am sure that they do not stress that personality is important in politics. It seems to me that it is rather difficult to disentangle personality from politics. Let us discuss this further off the Floor. I even promise to buy the noble Lord a drink.

I was talking about conventions of the British constitution. I have been recalling the answer that the noble Lord, Lord Young of Cookham, gave last year when the question was raised about the Advisory Committee on Business Appointments’ sharp letter to the Foreign Secretary when he resigned about the way in which Boris Johnson broke the Ministerial Code in three places within three days of resigning. The noble Lord extremely carefully stressed that the Ministerial Code is an honour code and depends upon the honour of the men who sign it, leaving the question of whether Boris Johnson is a man of honour hanging in the air.

That is part of the issue of trust which the noble Lords, Lord Kerr and Lord Hayward, and many others across the House have raised today. The matter of whether the Government would consider ignoring a law passed through Parliament if they did not like it, quoted in the Times today, increases the degree of mistrust. When the noble Lord, Lord Mandelson, said that he cannot believe that the Prime Minister is negotiating in good faith, he speaks for a large number of people, which is worrying. He also says that we have to remember that the Prime Minister’s chief of staff is in contempt of Parliament and has written a blog showing many examples of his contempt, not only for Parliament but for most politicians in all parties. The problem, therefore, is that we cannot trust this Government, so Parliament is justified in tying their hands, which is the purpose of this Bill.

There is then the question of the role of evidence in policy-making, and of Civil Service advice and impartiality. The relationship between the Civil Service and the Government is based on the principle that civil servants advise on the basis of the best evidence they can find, and Ministers decide. What we have seen throughout this long argument about our membership of the European Community is Ministers and politicians disregarding advice and putting aside the evidence. I recall during my time in government, long before we reached the referendum, when, with David Lidington and Greg Clark, I chaired a Committee which at Conservative insistence looked at the balance of competences between the European Union and the United Kingdom. The Conservatives had insisted on it in the 2010 agreement because they were convinced that the evidence would demonstrate that business and other stakeholders would want to claw substantial powers back from the European Union to the UK. One of the most conscientious suppliers of evidence to the 32 reports that were provided was the director of the Scotch Whisky Association, Mr David Frost. He had been engaged in this for some time and he clearly knew what he was talking about and where the evidence lay. When those reports concluded that the balance of competences as currently established suited British business and other stakeholders well, the Prime Minister’s office did its best to supress further debate.

I hope that I misheard the noble Lord, Lord Howell, when he suggested that David Frost was perhaps not pressing the Prime Minister’s case on the Irish backstop as hard as he might in Brussels—

[Lord Howell of Guildford]

The noble Lord misheard me.

[Lord Wallace of Saltaire]

I am glad to hear that. We have seen a worrying number of occasions when Ministers have blamed civil servants for decisions that they should have taken responsibility for. Poor Ministers blame officials in the way that poor workmen blame their tools. Michael Gove on experts, David Davis on officials, and others have lowered the quality of political debate in this country. We desperately need to rebuild it. It is not only the Government; the noble Lord, Lord Green of Deddington, reminds us of the migration issue. I have read many of the Migration Watch UK reports over the years, with good evidence presented to suggest that the migration problem in Britain is largely a European one, rather than a global one. That helped the leave campaign very considerably, and I regret that misrepresentation of evidence. Operation Yellowhammer is the most recent example of good evidence being presented by civil servants, so far as we understand it, and suppressed by the Government because it did not fit what they wanted. Again, I may have misheard the noble Lord, Lord Callanan, on Tuesday. I thought he said that the report was based on “reasonable assumptions” about the outcome of a no-deal Brexit, and that it was a “worst-case analysis”. The think tank I worked for dealt in scenario planning, and would have central analyses, and best-case and worst-case analyses. I understand that Operation Yellowhammer was a central-scenario analysis of the risks. The Government should therefore be prepared to share what they think are the potential risks of a no-deal Brexit.

It is three years since the referendum. The focus of negotiations has been within the Conservative Party and not between the UK Government and the European Union. Theresa May, as Prime Minister, was pulled to the right by the European Research Group and imposed tight red lines. There could have been a compromise. Had the Government said that we would have a soft Brexit and stay within the single market and customs union, everything would have been over and dealt with long before now. The red lines were tightened and tightened, in late 2016 and early 2017, which led us to where we are today. After three years, the Conservative Party is even more deeply divided and we now see it crumbling at the edges, with the Cummings purge and even more so with the resignation of Jo Johnson this morning, when he said he is,

“torn between family loyalty and the national interest”.

We need politicians to think about the national interest, although I see Twitter remarked that this is the first occasion that a Minister has resigned to spend less time with his family.

The time remaining is short. The clock is ticking and deadlines are approaching. After three years of drift, without a clear government policy on what sort of exit to take, the idea that a deal could be reached on 17 and 18 October and implemented by 31 October is as absurd as some of the other things we have heard. As the noble Lord, Lord Anderson, remarked, the legislative basis for an ordinary Brexit will simply not be there. We will be going out without the legal framework that we need; that is not an orderly Brexit. We need more time. We need more honesty about the choices, more respect for evidence, what is possible and what is not. We need a Government and an Opposition who put the national interest ahead of party factionalism. Since we do not sufficiently have these qualities in our national debate at present, we need this Bill.