Brexit: Withdrawal Agreement and Political Declaration

Lord Kerr of Kinlochard Excerpts

Thursday 6th December 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, conversation with continental friends is becoming a little awkward because they are embarrassed at the scale of our humiliation. The declaration evokes particular derision and surprise—surprise because Article 50 called for the drafters of the withdrawal treaty to take account of the framework for the future relationship. That sequence has been reversed. The divorce came first, and there is no load-bearing framework and no architecture for a future consultative relationship, only this flimsy declaration rich in adjectives and aspirations—an annotated agenda for a future negotiation, neither binding nor determinant.

My continental friends know why that has happened: because the United Kingdom never put forward any proposals for a framework. We were quick to say what we did not want—the single market, the customs union, free movement and the court of justice—in the party conference speech in 2016, but we never set out what we did want, presumably because the Cabinet, then as now, preferred not to try to agree on how close or distant the future relationship should be.

Therefore, despite the helpful wording of Article 50 with the framework reference, we have ended up with what the noble Lord, Lord Bridges, rightly calls a gangplank into the unknown. The declaration is no more than windy window-dressing, and everybody knows that. It is a recipe for a blindfold Brexit, yet the Government sell the deal as at least providing certainty. It is true that the 21-month transition period is very good news for the multinationals, because it will permit orderly disinvestment while we still apply EU laws and regulations in which we shall have no say. But what happens next? One extension of the transition period is possible if the EU consents. If it does not consent, or after any extension, we default automatically into the backstop. Here, the position worsens in four ways.

First, the level playing field provisions mean that the EU retains a droit de regard over parts of our fiscal laws, environmental laws, labour laws, social laws, state aids and competition policy. Secondly, the single customs territory provisions mean that the United Kingdom’s external tariffs, quotas and duties will be set by Brussels. Rather brutally, Article 3 of the backstop protocol on page 337 tells us that we will be “informed”—not consulted—by Brussels on any changes in our tariffs and quotas. Is that taking back control?

Thirdly, Northern Ireland is integrated into the single market more deeply than Great Britain. That means regulatory checks on GB-NI trade and that if a single-market law proves onerous in Belfast, the obvious route for seeking relief will be down the road to Dublin, where there will be a friendly Government who still have a voice in Brussels and Strasbourg. What about our precious union?

Fourthly, the single customs territory restricts our ability to do trade deals with third countries, but our non-membership of the single market means fiscal and regulatory checks at Calais and queues on the Dover Road. So we get the friction without the freedom. Is that taking back control?

How do we get out of the backstop? We know the answer now. The Attorney-General is admirably honest at paragraph 30 of his letter which states that,

“the Protocol … does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without subsequent agreement. That remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement”.

In that situation, we are stuck in the backstop for ever. We can get out, in any scenario, only when the 27 agree a successful treaty with us. Association treaties take four to seven years and the scope of this association treaty, if it follows the subject matter set out in the declaration, will be the widest ever and likely to take longer than most. Remember that such treaties require 27 national ratifications, a process that in some countries involves referenda and in Belgium requires the consent of seven legislative chambers—remember Wallonia.

Remember too that the rules of engagement for the EU’s negotiators will have changed. Today, Article 50 applies and they agree their positions by qualified majority. A single state can be voted down by the others. Then it will be Article 218 and unanimity, so it will take only one to dig in and block. I have been there. I recall Spanish accession being held up for years by the French tomato growers—truculent Gascons like the noble Lord, Lord Lawson of Blaby. I recall Norway’s attempt at accession, sunk on the rocks of Spanish intransigence on fishing. The noble Lord, Lord Selkirk of Douglas, spoke with great authority last night about the need to avoid a link between quotas for continental fishing in Scottish waters and access to EU markets for Scottish fish. But President Macron has made a link. He says that there will be no EU-UK free trade agreement without continuing French access to our waters. The Secretary of State for the Environment, Food and Rural Affairs, Mr Gove, says that he is wrong, but Mr Gove will not be in the European Council whereas President Macron will be. It takes only one.

Our negotiators up to now have been hampered by our own red lines and Cabinet indecision. But their hand will be a lot weaker once we are out, not least because they will be under time pressure—the pressure to get out of the backstop. The only certainty that these texts bring is the certainty of continuing uncertainty, at least until 2025 and perhaps longer, unless we capitulate all down the course and across the subject matter of the successor agreement. Is that taking back control?

So what do we do? I am less tempted than the noble Lord, Lord Warner, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, by the doctor’s prescription of the noble Lord, Lord Owen—the EEA. I am surprised that Mr Gove is said to like it because I am afraid that the 27 would not agree to give up the backstop that they have secured in the context of our joining the EEA because the EEA treaty—Article 127 —gives a unilateral right to withdraw. The 27 would maintain that they needed it to continue. I am also not convinced that we can slip effortlessly round the table and join the EEA’s non-EU side. I do not believe that. We would need to sign an amendment to the EFTA treaty and then the EEA treaty. The first would need four national ratifications and the second would need 30 national ratifications. There is no speedy way to avoid uncertainty via the EEA route. It might be a feasible route, but it would take time and prolonged uncertainty.

My own view is that the way ahead was signposted for us, as the noble Lord, Lord Haskel, just said, by the advocate-general at the CJEU this week when he confirmed our absolute right, unilaterally, to withdraw our Article 50 letter. Were we to do so before the expiry of the two-year period or any agreed extension of that period—an extension to allow time for a referendum would be easily obtained—we would never have left and the terms of our membership could not be changed without our agreement. The Secretary of State for the Environment is wrong about that too. So Margaret Thatcher’s rebate, John Major’s euro exemption, the then Home Secretary Theresa May’s ticket to Europol, the European arrest warrant and the Schengen Information System would all run on. We would keep the deal that we have, which is so much better than the one we debate today. The country should be given the choice.

I will therefore be voting for the Motion in the name of the noble Baroness, Lady Smith of Basildon. Unlike the noble Lord, Lord Butler of Brockwell, I believe that the Motion understates the damage that the deal on the table would do. Like Warren Hastings, I think, in Westminster Hall, she could say that she stands amazed at her own moderation. It would be absurd if, at this highly significant historical juncture, after our great debate, after some 164 speeches, this House were solemnly to decide to express no view at all on the text that we are required to consider. Where were you in the Great War, Daddy?

We should say what we think. In the battle of the Cabinet Secretaries, I am with the noble Lords, Lord Wilson and Lord Armstrong. The Cabinet minutes of the noble Lord, Lord Butler, were always lapidary, but they were never vacuous.