Queen’s Speech

Lord Kerr of Kinlochard Excerpts

Wednesday 18th May 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

The Queen’s Speech said that we

“will lead the way in championing security around the world.”

In “Yes Minister”, the Permanent Secretary would have said, “Very bold, Minister”. It is quite a bold assertion. We used to be good at understatement. Conservative Foreign Secretaries such as Alec Douglas-Home, Peter Carrington, Geoffrey Howe and Douglas Hurd tended to speak rather softly, although they still carried quite a big stick. They tended to get their way. The stick is now a little smaller, as the noble Baroness, Lady Davidson, convincingly reminded us, but we seem to be shouting rather loudly and not getting our way quite so often.

I want us to be trusted. Trust is quite a good thing to have. I want people to believe that, if they conclude a deal with us, that deal is likely to stick. This makes it easier to conclude a deal. I would like people to think it unthinkable that we would break a treaty commitment and start a trade war. I must say to the noble Lord, Lord Frost—I am sorry he is not here to hear it—that this House still champions the rule of law. I think we showed that during the passage of the then internal market Bill and, if we have to, we will show it again in connection with a Brexit Bill.

The Queen’s Speech does not say anything at all about development; the noble Lord, Lord Collins, was absolutely right to pick that up. The slick brochure published by the Foreign Office this week is unconvincing and alarming. It is alarming because it is clear that we are switching aid away from multilateral to bilateral, back to more tied aid. We will give less support to the international agencies fighting the causes of global insecurity, such as famine, disease, unrest and mass migration. Three out of every four cross-channel migrants and refugees come from a country fighting severe famine right now, but it seems from the Foreign Office publication that we plan to cut back on what we do to stem the flow at source—although, of course, the Queen’s Speech said that we will be hard on refugees. Apart from the moral imperative, is it not in our self-interest to do more, not less, through the multilateral agencies?

The noble Lord, Lord King, was absolutely right—as he usually is—in pointing to the imminence of the global famine. It is here already, but it is going to get much worse. Before Putin’s invasion, 80% of Egypt’s wheat came from the Black Sea; 75% of Sudan’s; 75% of Lebanon’s; 50% of Libya’s; and 50% of Tunisia’s. Global stocks were already at their lowest for seven years. The World Food Programme was already telling us that we were facing an unprecedented global hunger crisis before Putin’s invasion. As the noble Lord, Lord King, pointed out, protectionism in India and Indonesia —export bans—means that it is not just wheat that will be in very short supply in the Middle East. There are 9 million people in Tigray who are starving right now. The WFP says that there will be 20 million in Sudan within three months.

Should we not be urgently doing more, not less, for the WFP, the FAO, the UNDP, the UNHCR and the WHO? The WHO says that Covid has already killed 6 million and is still killing 1,000 a day. Those are probably underestimates, because the statistics are patchy. Some 75% of us are fully vaccinated, but only 23% are in Uganda, 19% in Ghana, 6% in Tanzania and 5% in Malawi. These disparities shame and threaten us. Do we not owe it to our Commonwealth friends and to ourselves to do more to help them do better?

It is not just them. In tragic, war-torn, blockaded Yemen, only 1% of the population has been vaccinated at all. Are we using our undoubted influence in Riyadh to persuade the Saudis that lives must be saved in the Yemen? I hope so, but I do not know.

The key global responder is the WHO. Some 80% of its finance comes from voluntary national contributions. Are we up there as global leaders showing the way? No, we are way down the pack. Up at the top are Germany and Japan; we are down with New Zealand. Global Australia contributes more than global Britain; the Gates Foundation contributes more than global Britain. Should we not put that right? It is a global pandemic and, if we aspire to be champions of global security and lead the way, should we not be doing something about global insecurity and its root causes?

My last point harkens back to my first. When working in Washington and Brussels, I was lucky enough to witness a virtuous circle: the more the White House trusted us, particularly because of our policies on Northern Ireland through John Major and Tony Blair, the more our perceived influence in Washington strengthened our hand in Brussels—and the more we were seen to deliver on common purposes with our friends in Europe, the more the White House listened to us. I worry about the very real risk of a vicious circle, which works the other way. Picking fights with the 27, particularly over Northern Ireland, is the best way of losing friends in Washington. The more we drift away from both Europe and America—

[Viscount Younger of Leckie (Con)]

My Lords, it is a very long last point and I do urge the noble Lord to conclude.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

It is a very important last point. The more we drift away from both sides of the Atlantic, the emptier our talk of leading the way. Effective foreign relations are built on trust, perceived honesty and reliability, so it is important that deals that are done stay done deals. No one ever doubted the word of Home, Carrington, Howe or Hurd: pacta sunt servanda.

--- Later in debate ---

[Lord Lilley (Con)]

My Lords, on the “Today” programme on Radio 4 on Friday the Irish Foreign Minister, Simon Coveney, asserted that “the EU cannot and will not renegotiate the Northern Ireland protocol”. In fact the EU can, should and must renegotiate it. It can renegotiate because any treaty can be renegotiated, and many are. It should renegotiate it because the sole justification of the protocol was to uphold the Belfast agreement, and the first article is that nothing in the protocol shall prejudice the Good Friday/Belfast agreement. As the former Solicitor-General, Sir Robert Buckland, said yesterday,

“that means … that the … agreement takes primacy over the protocol”,—[Official Report, Commons, 17/5/22; col. 554.]

so the British Government, as co-guarantor of the agreement, have a duty to renegotiate the elements of it which are undermining the Belfast agreement.

The main point I want to make in the five minutes that I have is that the EU must renegotiate the protocol. It must because, legally, the protocol is not a permanent arrangement: it must eventually be replaced or it will lapse. That is not my opinion or the Government’s opinion; it was the whole basis on which the EU negotiated the withdrawal agreement: that, under Article 50, it did not have the competence to negotiate a permanent trade and co-operation agreement with a member state. Article 50 allowed it only to negotiate the divorce terms and temporary or transitional arrangements to smooth the departure of a member state. It said that a permanent trade relationship could be agreed under Article 218 only with a non-member state. That is why the EU refused Mrs May’s request to negotiate the trade and co-operation agreement in parallel with the withdrawal agreement. The UK had first to leave the EU, agree to sign the withdrawal agreement and become a non-member state before negotiations on a permanent trade and co-operation agreement could even begin, so how come there was a trade and co-operation agreement covering Northern Ireland?

The Northern Ireland protocol could be agreed under Article 50 only because and so long as it was temporary; it was needed to smooth departure, not least because there was no certainty that a permanent trade and co-operation agreement between the UK and the EU would be in place by the time we left the EU. That should not be news to us because the former Attorney-General Geoffrey Cox explained to the House of Commons that,

“article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states”. —[Official Report, Commons, 3/12/18; col. 547.]

He went on to say that, if traders in future felt disadvantaged by the protocol, they should

“beat a path to the door of the Commission and the Court … to say, ‘Didn’t you say that article 50 is not a sound legal foundation for this arrangement?’ And I tell you frankly, Mr Speaker, they are likely to win.”—[Official Report, Commons, 3/12/18; col. 555.]

The original protocol itself spelled out that

“the Withdrawal Agreement, which is based on Article 50 TEU, does not aim at establishing a permanent future relationship between the Union and the United Kingdom”.

That is equally true of the protocol in the final withdrawal Act, since it, too, is based on Article 50. Paragraph 8 of Article 13 of the protocol itself specifically envisages the replacement of all or parts of the protocol by a subsequent agreement. Nor does the provision in the final protocol for approval or rejection by the Northern Ireland Assembly alter the issue; even if the Assembly were to endorse the arrangements set down under the protocol, which was an agreement between the EU and the whole UK, not just Northern Ireland itself, that would not change its transitional nature.

The temporary nature of the protocol is a matter of EU law. I am puzzled that its author never remembers that nowadays. He and all the other spokesmen of the European Union in this House suffer from a selective memory and treat this protocol as if it is to be permanent and cannot and should not be changed, even if undermines the Belfast agreement, which was the very purpose of that protocol. Of course, I give way to the noble Lord, my former good friend.

[Lord Kerr of Kinlochard (CB)]

It is just possible that the noble Lord is confusing two versions of the protocol —the one negotiated by the previous Prime Minister and the one negotiated by the present Prime Minister. The previous Prime Minister’s protocol was, on the face of it, clear, straightforward and temporary. The present Prime Minister’s protocol is permanent.

[Lord Lilley (Con)]

The transitory nature of both protocols arises from Article 50, which the noble Lord himself wrote—and if he wishes to repudiate that and say that Article 50 does not mean what the European Union says that it means, that would be an interesting thing to do. If the European Union were now to change its view and say, “We were conning you and having you on when we said that we couldn’t negotiate a permanent arrangement under Article 50”, it would show that the original treaty was based on negotiations in bad faith, and that would give us a basis to seek renegotiation.

More positively, we should look to the EU to negotiate and renegotiate with the same spirit and the same objective that it did the original protocol: to uphold the Belfast/Good Friday agreement in all its parts. I welcome the fact that the British Government are moving forward on that basis.