Brexit: Withdrawal Agreement and Political Declaration

Lord Kerr of Kinlochard Excerpts

Wednesday 9th January 2019 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, following the noble Lord, Lord Fox, I too have decided I will not repeat what I said five weeks ago. I learned from the noble Lord, Lord Newby, and the most reverend Primate. Speaking then about the deal on offer, I said how shocked I was by the humiliating nature of the treaty, and by how vacuous the declaration was and how toxic the combination was, in particular since, to me, it in no way predetermines or indicates what the nature of the future relationship will be. It seems the only certainty it guarantees is that there will be continuing uncertainty and rancour for a very considerable period, once we are trapped in the backstop.

What I said produced some unusual support; this was unaccustomed support for me from the Robespierres of the government Back Benches—the rebellious revolutionaries. I fear I must disappoint them today, because I want instead to talk about two things which have happened since our debate started. In particular, I want to draw the House’s attention to the Commission’s announcement on 19 December about what happens if the British crash out on 29 March. The Commission has told the member states that if the treaty is not approved and ratified by the United Kingdom, it must apply the Union customs code in full to all goods coming from the United Kingdom from 30 March. It did so in spite of the suggestion made from the government Benches by a former leader of the governing party—a very distinguished noble Lord—that the answer to the problem of disruption was a 12-month moratorium, during which we would,

“not place any tariffs, tariff barriers or obstacles against the importation of goods and services into the United Kingdom from the European Union”,—[Official Report, 5/12/18; col. 1034.]

in the hope that the EU would reciprocate. He emphasised that we should do it anyway, even if it did not reciprocate.

Why has the EU not responded to this extremely kind and generous proposal? Because the EU is a member of the World Trade Organization and is legally obliged to play by WTO rules, including the fundamental rule known as “most-favoured-nation”. If the EU allowed tariff-free access for our goods when we are a third country, as we will be from 30 March if the Government get their way, it would have to do the same for similar goods from any other third country. That is what WTO rules mean. If we were to do as the noble Lord suggested, we would either have to abolish all our import tariffs and quotas for any category of goods which we also import from the EU—a step which would hardly thrill British industry or agriculture—or, from the start, we would be in breach of the very WTO rules which the Robespierres tell us would suit us so well. I give way to the noble Lord.

[Lord Lamont of Lerwick (Con)]

Would the noble Lord comment on Article 24 of the GATT agreement?

[Lord Kerr of Kinlochard]

Indeed, if there was a free-trade arrangement, then of course none of what I have said applies. However, I thought the essence of “no deal” was that there would be no deal. Those who advocate no deal and living by WTO rules should be honest about what these rules mean. The noble Lord, Lord Hain, was absolutely right in his description: no deal would be a disaster, and a managed no deal is a mirage.

The second development I want to mention is the Court of Justice’s finding on 10 December, which confirmed that we have an absolute right unilaterally to take back Mrs May’s letter and that this would bring the withdrawal process to an immediate end. The only stipulations are that the two-year period, or any extension of it, must not have expired; that our decision must involve a democratic process, not just an executive act—in other words, Parliament must have voted for revocation; and that the decision must be unequivocal and unconditional, which I assume means we could not withdraw the letter and resubmit it the following day. We could not just do so as a stratagem to reset the clock, undercutting both the two-year limit and the specific provision in Article 50 for securing extensions.

I was not surprised by the court’s ruling, although I admit that I was a little relieved. Had the court reached a different view my credibility might have dropped a little bit, since I have spoken on the subject once or twice before. But my relief must have been trivial compared with that of the Dantons and Marats of the Government Back Bench, who have argued regularly in the House—and a couple of them in the columns of the London Times—that revocation would entail a negotiation. They have warned us down the years that we would lose the Thatcher rebate, or be forced into Schengen or the euro. They must have been hugely reassured that the court confirmed that there would be no negotiation. The terms of our membership would not change and could not be changed to our disadvantage.

This establishes that the country has a third option. We do not have to settle for the Hobson’s choice of the May deal or no deal. There is the option of keeping the deal that we have, secured and improved by successive Governments. Public opinion polls, as the noble Lord, Lord Newby, said, consistently show that that is the will of the people. The margin for months has been 8%. Interestingly, it rises to 16% if you ask people to compare the May deal and staying in, and to 26% if you ask people to compare no deal and staying in. Now that people have the facts and know that we cannot have our cake and eat it—that unicorns do not exist—they can make an informed choice. It is pretty clear what that is.

Of course, putting the question to the country would require an extension of the Article 50 period, but I have yet to meet anyone in Brussels who thinks that an extension for that purpose would be refused. Brexit, though worst for us, is bad for everybody. I would expect objections if we were seeking an extension purely to permit further posturing and prevarication, or further efforts to get the 27 to agree a legally binding text contradicting the legally binding treaty. But an extension to permit consulting the country would be easily obtained. Though, like the noble and learned Lord, Lord Hope, I do not relish the prospect of a second referendum, it seems it is now clearly the least worst option on the table.

I support the Motion in the name of the noble Baroness the Leader of the Opposition. I hope that the Opposition will soon be able to return the favour and support a people’s vote as a responsible way to resolve the deadlock in the other place.