European Union (Withdrawal) (No. 6) Bill

Lord Kerr of Kinlochard Excerpts

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

[Baroness Bull (CB)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

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[Lord Kerr of Kinlochard]

My Lords, it is a pleasure to follow the noble Lord, Lord Cashman. There are moments when one is reminded of what a privilege it is to be in this place. This debate is one of them. I think, in particular, of what the noble Lord, Lord Cashman, just said; how the noble Lord, Lord Patten, ended with his warning on Northern Ireland; what the noble Lord, Lord Cormack, said; and what the noble Lord, Lord Hain, said. I do not intend to address any of the great themes that they touched on today, but it is a privilege to take part in a debate of such calibre. I did not feel that about yesterday’s debate for some reason.

I want to address two themes: a constitutional theme and a negotiating theme. One concerns our domestic affairs and the other our relationship with the EU 27. Both arise directly from the terms of the Bill we are debating. The noble Lord, Lord Patten, quoted my hero, Kenneth Clarke, who yesterday, in the House of Commons, referred to an element of disingenuousness in the prime ministerial position. I found it shocking that the documents revealed in the court case in Edinburgh show that the Prorogation plan and timing was decided in the middle of August and, for another two weeks, the No. 10 spokesman denied that there was or could be any such plan. I found it very shocking that the Prime Minister, when the plan became clear and the proclamation was issued, maintained that his motives had nothing to do with Brexit. Nobody in the country believed that, but it was still shocking to me to see in these documents from Edinburgh that it was precisely about Brexit. It was knowingly and deliberately about Brexit. Ken Clarke said that it was “disingenuous”. We have an issue of trust here.

The No. 10 spokesman said this morning that, if the Bill we are debating now becomes an Act, the Government and Prime Minister will not abide by it. I assume he misspoke, but we recall Mr Gove discussing this with Andrew Marr last Sunday and refusing to say whether the Government would implement the law of the land. They will wait and see what it says. On the same day, we saw that, among the clever plans that Mr Cummings is cooking up is simply not sending the Bill for Royal Assent. This is not exactly the “good chaps” theory of government. I find it difficult to deal with this issue of trust. I spent a long time in public service, and one did not see one’s political masters being disingenuous or telling lies. One saw them avoiding answering difficult questions. One found ways to help them avoid answering difficult questions. One gave them answers to other questions, which might be suitable, but one never drafted a lie. In 36 years of public service, I do not think I ever told a lie. Telling a lie is a stupid thing to do, because it creates a subsequent problem of trust. So we are legislating against a peculiar background.

I was interested in the discussion of legitimacy by the noble Lord, Lord Howard, and this being an opposition Bill. I found that discussion more interesting than the historical disquisition, where I do not entirely share his views. I do not share his views on the discussion of legitimacy at all. A Bill is a Bill. A Bill has been passed by the House of Commons and comes to us here. It is legitimate and the voice of the House of Commons. If we approve the Bill, it is then the voice of two Houses of Parliament. It does not matter who drafted the original; it is legitimate. It would be wholly illegitimate for the Government to decide to do what Mr Cummings hinted, which was to sit on it and not send it to the Palace, or what the spokesman this morning said they would do, which was to ignore it. That is a major constitutional issue.

When the Government reply to this debate, I hope they confirm that, if the Bill is passed by this House tomorrow, it will be sent for Royal Assent; and that, once it has received Royal Assent, it will be acted on. These are ridiculous questions to ask in our parliamentary democracy, but such is the issue of trust that one has to ask them.

My second theme is our relationship with the European Union.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

It may help the noble Lord if I inform him that, as part of the agreement last night, we said that, if the Bill is passed and becomes an Act, it would be available to the House of Commons on Monday and sent for Royal Assent.

[Lord Kerr of Kinlochard]

It will be sent for Royal Assent, but would it then be acted on? No one asked that question yesterday because it is an absurd question. I only ask it because a No. 10 spokesman said today that it would not be acted on and that the Prime Minister would not abide by it.

[Lord Callanan]

The reason I used that form of wording is that one of the original proposals was that we would guarantee that it would receive Royal Assent. Obviously, we cannot speak on behalf of the Palace so we merely said that we would enable it to be sent for Royal Assent. I think the original guarantee that we were asked for was that it would receive Royal Assent by Monday evening. We could not give a guarantee because obviously that depends on the ability of Her Majesty, so we will send it for Royal Assent if it becomes an Act.

[Lord Goldsmith (Lab)]

But of course it would be open to Her Majesty’s Ministers to advise her to give Royal Assent, and I assume that is what would happen. Can that be confirmed?

[Lord Kerr of Kinlochard]

May I repeat to the Minister the question that Mr Marr put to Mr Gove? Will the Government act on the law of the land if this Bill becomes an Act and receives Royal Assent?

[Lord Callanan]

The Government will abide by the law.

[Lord Cormack]

I remind the noble Lord that the last monarch to refuse Royal Assent was Queen Anne, over 300 years ago. Subsequently, every Act passed by Parliament has been submitted for, and received, Royal Assent.

[Lord Kerr of Kinlochard]

I want to move on to the European theme and the question of negotiation. The scripts spoken to yesterday by a number of noble Lords contained the familiar argument, which the Prime Minister has been using extensively, that the legs would be knocked out from under his negotiating strategy if no deal was taken off the table. I have spoken on this before and I do not want to bore the House, but I believe that is completely untrue. Saying, “If you don’t give me what I’m asking for in this negotiation, I will shoot myself”, is not a credible threat.

We know that the pain is asymmetric; although everyone is damaged by a no-deal crash-out Brexit, it is the UK that will be damaged hugely more than anyone else. We know that and they know that. We know that there is a problem of asymmetric preparation. They are better prepared than we are, even though they have proportionally less of a problem than we have.

Everything that I have said up to now I have bored the House with before, but here comes a new point. It is now not possible, or it will very shortly not be possible, to get a new deal agreed at the European Council on 17 October. I think the Prime Minister may listen too much to Mr Cummings, who is an expert on game theory and has studied it very closely; I do not think he has done much international negotiation, but he knows a lot about game theory. I believe that he is playing the game of chicken, which we know from American movies in the 1950s and 1960s, where you put your foot down hard on the accelerator, ideally throw away the steering wheel and drive straight at each other, each believing that the other guy will swerve. There are two problems in applying that theory to negotiation with the EU. One is that it is a union, consisting of 27 member states. It takes them a long time to make a decision to swerve. They need to get instructions in Brussels on whatever you put forward; they need to debate that, send the reactions back and then hear what the Government think.

Today’s papers say that Mr David Frost was saying yesterday in Brussels that the British could not put forward any proposals now because they would be attacked by the ERG, published by the EU and criticised in the Article 50 working group. Each element of that is probably true, but it should not mean that we do not put forward any proposals. When Barnier says “paralysis” and our Prime Minister says “remarkable progress, wonderful progress”, the question of disingenuousness creeps in again. I tend to believe Mr Barnier; I find it harder to believe our Prime Minister, which is a very worrying thing to say. It will take them a lot of time. Any proposals to be discussed on 17 October ought certainly to be in negotiation now with the Article 50 working group.

It is my belief that Mr Cummings, in addition to believing in the game of chicken, does not mind if we have a no-deal crash-out. Given what Mr Farage has been saying, he may actually see benefit in a no-deal crash-out. Mr Farage has said that if the Prime Minister negotiates some new variant of Mrs May’s withdrawal agreement, his party will run against the Conservative Party in every Conservative-held seat, whereas if Mr Johnson sticks to his promise to go, do or die, on 31 October with no deal, various forms of pact, informal or formal, are possible. That is what Mr Farage is saying. I have a theory that Mr Cummings may be listening.

In addition to the problem of trust in respect of the text of the Bill before us, we seem to have a problem of whether it will be interpreted not just in the letter but in the spirit. The Prime Minister, obliged to write the letter that the Act would require him to write if the circumstances set out in Clause 1 arose—the noble Lord, Lord Callanan, confirms that the Prime Minister would feel so obliged—could send it and make sure that the European Union did not agree. The European Union needs unanimity. He could talk to a friend in, let us say, Budapest; as a classicist, he could also put his oral presentations in a “num” rather than a “nonne” way; by adding threats and undertakings of what we intend to do, he could make sure that we do not get from the European Union the extension that we have required him to seek if the circumstances arose.

The problem of trust is quite a big one. It would be good if the Government in responding to this debate said that they will not only act on the law but do so in the spirit in which the House of Commons passed it. The noble and learned Lord, Lord Brown, suggested that we would be going cap in hand to the European Council and who knows what terms we could obtain. That is a bugbear. Honestly, either you are in the European Union or you are out of it; there is no middle position that we could be put into. The noble and learned Lord implied—perhaps I got him wrong—that for the period of any extension the terms of our membership would be for the 27 to decide. No, sir, we are either a member with the full rights of a member or we are not in. I am very sad that we are not exercising the full rights of a member any more; I am very sad that, from 1 September, there are important working groups, important meetings of COREPER and important councils in which the British are following the policy of the empty seat. It did the French no good when General de Gaulle tried it; it will do us no good. Wherever we are going to be—in or out, close or far from the European Union—it must be in our interest, until the last possible moment, to exert as much influence as we can on the direction and legislation of the European Union.

That is my answer to the noble and learned Lord, Lord Brown. We can put ourselves in a half-in, half-out position, but the European Union cannot. However, I am nervous that we have not necessarily solved the problem with this Bill—for which I shall vote—because it seems to me that, in addition to the risk that the Government will not act on the Bill, there may be a bigger risk that they will act on it in a disingenuous way and that the purposes set out in it may therefore not be achieved.

European Union (Withdrawal) (No. 6) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord Cormack]

That was a fairly lengthy intervention, but the fact of the matter is that we have been placed in a straitjacket by the Government’s decision on Prorogation. We have an agreement between the two Front Benches here. That is why we should move forward and get the Bill on to the statute book as quickly as possible.

[Lord Kerr of Kinlochard (CB)]

I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.

The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.

The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.

The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.

[Lord Lilley (Con)]

Could the noble Lord clarify whether it would be possible for the European Council to set the condition that the British Parliament, or the British Government, agree to hold a referendum? I agree that it would not be possible for it to set conditions that limited our powers within the period of membership, but surely it is possible for it to do that.

[Lord Kerr of Kinlochard]

That is absolutely out of the question. The treaty language, including in Article 50, is absolutely clear that it is for the member state to proceed under its own constitutional procedures. That is specifically spelled out, including in Article 50. The idea that the European Union would interfere in our domestic decision-taking constitutional arrangements is out of the question.

[Lord Lisvane (CB)]

My Lords, on a slightly more pedantic level, I will try to assist the noble Viscount, Lord Trenchard, with his earlier question. I think he thought that Lords sitting days had not been statutorily defined. They are actually defined in Section 13(16)—

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[Lord Rooker]

I did note it but I have no comment to make on it.

[Lord Kerr of Kinlochard]

I do not think it is for me to comment on discussions in the European Council. Like the noble Baroness, Lady Ludford, I do not know what happened when President Macron argued for a shorter extension at the last European Council. It is perfectly possible that dialogue with the British Prime Minister might take place, but what is not possible is that there could be a conditional extension. The extension would be unconditional because that is what the treaty says, or rather the treaty contains no powers for imposing a conditional extension.

[Lord Rooker]

That being the entire point, I invite the noble Baroness to withdraw her amendment.