EU: Future Relationship

Lord Kerr of Kinlochard Excerpts

Wednesday 23rd September 2020 Grand Committee

[Lord Kerr of Kinlochard (CB) [V]]

How should one react if one’s Government deliberately, knowingly, admittedly and formally break international law? Like the noble Baroness, Lady Hayter, I think that Mrs May got it exactly right in the other place on Monday, and I congratulate her on her honesty and courage.

What matters for our debate today is how the 27 will react. They will have been as shocked as was Mrs May by the Bill that the Government produced, and shocked again when our Prime Minister had the nerve to accuse them of bad faith. However, I do not see them breaking off the negotiation; I see them starting infraction proceedings. The European Union runs on laws and pacta sunt servanda. I do not see them rejecting an agreement if the Barnier-Frost negotiations are to produce one but I cannot see them signing it—not without suspending its coming into force if our Government persist with what is now Clause 45 of the internal market Bill. Suspension seems to me to be the minimum on which the European Parliament would insist.

Why are we in this mess and how can we get out of it—indeed, will we? Let us not waste time on the fanciful story, for which no evidence has yet been produced, that the 27 were planning to blockade Northern Ireland’s food supplies. Who would enforce the blockade—the Commission navy, under Admiral Ursula von der Leyen? I suspect that the more banal context is our refusal to say what our future regime will be for sanitary and phytosanitary checks. Perhaps we are refusing to say because the chlorinated chicken war may still be raging in Cabinet.

The withdrawal agreement leaves Northern Ireland in the single market. Third-country suppliers of foodstuffs to the single market need a working SPS regime but the noble Lord, Lord Frost, seems to be telling the EU that ours is none of its business. Surely that is a stalemate that is relatively easy to solve, with the solution entirely in our hands. As for the other three problems that we have now discovered in the protocol, first, the Article 5.3 issue—how to ensure that export declarations and goods moving to the mainland apply only to those originating in the Republic—is an obvious task for the joint committee, and a relatively simple one. Secondly, the Article 5.2 issue, relating to goods at risk of entering the Republic, disappears if there is a free trade agreement.

Thirdly, the Article 10 issue—reach-back into the mainland on state aid—falls away if the level playing field argument is settled. This could be the crux of the matter. On state aid, the EU has dropped its unrealistic bid for dynamic alignment and CJEU jurisdiction, but it wants to know that we will have an effective regime with an independent authority, transparency, legal redress and, where trade with it is concerned, a dispute settlement mechanism. However, we seem to have said again that all that is none of its business and we are not going to set up our system until next year—so there.

This is serious. I do not believe that there can be a UK-EU free trade agreement unless on state aid we meet the EU half way. It has moved but we have not; indeed, we have regressed, resiling on last October’s political declaration when we agreed:

“Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field.”


The EU still believes that that is needed because it has heard far too much talk of Singapore-on-Thames, so I do not see us getting an agreement if on state aid—as on food standards, the environment, fish and carbon trading—we stick to saying, “Sorry, mind your own business, we’re taking back sovereignty.”

It is the sovereignty point, so stressed by the noble Lord, Lord Frost, that really puzzles me most. I would say that France and Germany are sovereign states and that their sovereignty was not diminished by their commitment to co-operation. I would say that we never lost our sovereignty; indeed, we have just demonstrated that by using it to leave. Sovereignty does not just mean the right to be left alone. Without sovereignty one cannot make treaties, but having sovereignty does not confer the right to dictate, or unilaterally revise, the terms of treaties and does not preclude binding commitments to co-operation.

Of course, I may be being naive. If, contrary to today’s reassuring remarks from the noble Lord, Lord True, we are actually on the ERG’s preferred policy of no deal then “none of your business” and the Clause 45 blunderbuss are easily explained. Avoiding commitments to high SPS standards might make sense if one’s priority was a deal with the United States. If so, there is a fatal flaw in that logic: if we blow up the Good Friday agreement, there will be no deal with the EU or with the US. The US is a guarantor power of the Belfast treaty, and American support for the Good Friday agreement is deep and bipartisan. The Foreign Secretary’s attempt last week to convince Washington that the threat to it comes not from us but from Brussels was not British diplomacy’s finest hour; it did not wash, nor will it.

I still hope for a second UK-EU treaty. That can only be thin now, but even a thin one would be better than nothing. However, it will not be agreed if we stick to our exceptionalist “mind your own business” sovereignty, and it will not come into force if we blow up the first treaty, which is only eight months old.