Brexit: Negotiations

Lord Kerr of Kinlochard Excerpts

Thursday 3rd October 2019 Lords Chamber

[Baroness Evans of Bowes Park]

I once again reiterate: we have made very clear that there will be no return to a hard border in Northern Ireland and that we believe that it is only right that the people of Northern Ireland have a say through the Executive on whether they wish to consent to the proposed arrangements. I believe that that is right. I will not second-guess their decision, but we fundamentally believe that it is their democratic right to decide that.

[Lord Kerr of Kinlochard (CB)]

That is, with respect, no answer to the noble Baroness’s question. Her question was this: supposing, four years down the line in this endless cycle of economic and political uncertainty—very dangerous to the Northern Ireland situation—that Northern Ireland said that it did not want this, what would happen then? It is not clear. Is the EU to be told that it may not have the particular standard or regulation because a province of a country that is outside the EU does not like it? It seems an implausible proposition to put to the EU.

I think that we are at a rather solemn moment here. We are formally resiling from our 2017 commitment to full regulatory alignment now and in future on anything that might affect the peace process and the all-Ireland economy. We are formally resiling from our 2018 commitment to a future economic partnership based on a level playing field and common standards for environment, employment and social standards. We are deliberately tearing it up and highlighting that in the letter that we have sent to the President of the Commission.

On the first point, I have nothing more to add to what the noble Lord, Lord Hain, has said on Northern Ireland. It seems to me that he is absolutely correct. I would only say that I think that the corrosive effect on the Northern Ireland political situation of the continuing uncertainty of this four-year cycle is bound to be damaging. I note that all elements in Northern Ireland—business or political, apart from the DUP—appear to be of the same view.

My view is that, in Brussels, more attention will be given to the abolition of the level-playing-field commitment. I think they will conclude, rightly or wrongly, that we intend to challenge them by going for lower standards and deregulation, and I think that they will find that extremely alarming. I heard the Prime Minister’s Statement. The noble and learned Lord, Lord Wallace of Tankerness, is completely correct: the Prime Minister said that checks in the Irish Sea would be one way. In other words, he implied that standards in the UK would be below those in the European Union and applied in Northern Ireland.

I have four questions to ask the Minister. First, does she recognise how this would increase the difficulty of concluding, some years hence, even a bare-bones, Canada-style free trade agreement with the European Union? Does she recognise the likely effect on market access to our largest market for our services exports, which are our biggest exports? Secondly, how will trade deals with third countries work, given that the applicable standards for UK imports will differ depending on the final destination in the UK? Thirdly, does the Minister believe that the European Parliament and this Parliament could conceivably agree by 31 October to ratify a treaty based on these proposals? Fourthly, if not, what do the Government intend to do?

Business of the House

Lord Kerr of Kinlochard Excerpts

Wednesday 4th September 2019 Lords Chamber

[Baroness Noakes]

I completely agree with my noble friend: hypocrisy describes well what we see in the way that many people are referring to prorogation.

[Lord Kerr of Kinlochard (CB)]

I am most grateful to the noble Baroness, and I remember an occasion on which we agreed about something.

I cannot accept what the noble Lord, Lord Forsyth, just said. There is nothing abnormal about prorogation, but a prorogation to permit or require a five-week suspension at this particular time—which, as the noble Lord, Lord Dobbs, rightly said, is not a normal time—is a scandal; it is abnormal.

I say to the noble Baroness, who earlier in her remarks attributed some motives and concerns to the Cross Bench—I cannot speak for the Cross Bench; we do not have a collective view—that a common view among those on the Cross Bench to whom I have spoken tonight that it is quite extraordinary, and against all the traditions of this House, that we have a Bill that has passed the House of Commons, and we have 84 amendments, a planned filibuster and people planning to argue that it is more important to debate bat habitat preservation than the Bill which the House of Commons has passed today.

[Baroness Noakes]

My Lords, we have never actually said that we should not debate the Bill. We have said that we are very happy to debate the Bill in the ordinary way. Our objection, and all the amendments to which the noble Lord referred, are about the business Motion before us, because of its seriously deleterious nature compared with the way in which this House does its normal business. The Motion is designed only to accomplish that Bill.

Parliamentary Buildings (Restoration and Renewal) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard): House of Lords
Monday 8th July 2019 Lords Chamber

[Baroness Evans of Bowes Park]

As I said, there will be consultation during the process but, ultimately, the sponsor body needs to bring an outline business case—the final proposal with costings, details and decant options—back to both Houses. Both Houses will vote on it, and that will be the final decision. Today, we are doing important work to enable the detailed work that noble Lords are obviously incredibly interested in, but it will return to Parliament for a final vote.

To repeat myself slightly, once the sponsor body and delivery authority have been established in statute, they will design an outline business case that the sponsor body must bring back to Parliament for approval and which will set out the scope, timing, delivery method and cost of the works. Only once the outline business case has been approved will the sponsor body and delivery authority be able to commence the substantial works on the Palace.

I very much hope that noble Lords will support the Bill’s timely passage so that we can begin to undertake the vital and increasingly pressing work to ensure that the Palace of Westminster is fit to serve as the home—

[Lord Kerr of Kinlochard (CB)]

This may be a question to which everybody else in the House knows the answer. Can the Minister tell us why neither the delivery authority nor the sponsor body will have a duty to have regard to heritage and preserving the fabric of the building?

[Baroness Evans of Bowes Park]

I hope I made clear earlier that we have agreed that we will bring forward an amendment in this House that will look at putting heritage in the Bill. As I also mentioned, we need to balance that with making sure that any renewal and restoration of the building takes into account modernisation and things that other noble Lords are keen on—for instance, improving disability access and ensuring that it is open and available to the public who want to come. We will bring forward an amendment in this House during the passage of the Bill to achieve, I hope, that balance. On that note, I beg to move.

European Council

Lord Kerr of Kinlochard Excerpts

Thursday 11th April 2019 Lords Chamber

[Baroness Evans of Bowes Park]

As I say, the talks are constructive and the Government have been very clear that we want to deliver the benefits of a customs union with the ability to deliver a negotiated trade policy. That is what we believe we can achieve. We believe that it is a reasonable place to start and we will be discussing with the Opposition how we might achieve that.

[Lord Kerr of Kinlochard (CB)]

I think that we have to try to rise to the level of events. The noble and learned Lord, Lord Goldsmith, was quite right to talk about the humiliating spectacle last night. The last time we debated a European Council, the noble Lord, Lord Armstrong of Ilminster, spoke of his shame. I feel that. I think that we should all feel that. This is not the United Kingdom that we know. The twin cements of our parliamentary democracy are Cabinet solidarity and the ability to muster a majority in the House of Commons to deliver on the principal planks of the Government’s programme. Neither of these conditions seems to apply in the case of Brexit. In my view, that means that we need to think about a general election. I do not believe that the Fixed-term Parliaments Act was a good idea. The Prime Minister has demonstrated that it is possible to escape the Act’s confines. That is where I believe we should go. When parliamentary democracy is stuck, one should consult the people. I am disappointed that the Prime Minister referred three times in her Statement to the undesirability of European Parliament elections. What is wrong with consulting the people? That would be quite a good test of where public opinion now is on this issue. What is wrong with having a general election with a view to getting a Government who can take decisions and get them through the House of Commons? What is wrong with a second referendum? It is a long time since the first one. Why do we not check what the will of the people actually is?

[Baroness Evans of Bowes Park]

I do not believe that there is any certainty that a general election would resolve the issues that this Parliament is grappling with. We need to deliver on the result of the referendum, which is to leave the EU. We have negotiated a good deal. There is a withdrawal agreement which can be agreed, allowing us to move on to discuss our future relationship with the EU. That is what we are focusing on. We are working across the House of Commons to try to find a way that this can be approved and we can start to move forward.

Business of the House

Lord Kerr of Kinlochard Excerpts

Tuesday 26th March 2019 Lords Chamber

[Lord Forsyth of Drumlean (Con)]

My Lords, I seem to remember that we had quite a lot of debate in this House about the inclusion of the date of 29 March in the legislation. It astonishes me greatly to find that the Prime Minister can go to a meeting in Brussels and, suddenly, what is in statue is completely irrelevant. However, I do not propose to say anything about that because I strongly support my noble friend Lord True. Unlike the noble Baroness, he did not address whether we needed to change the date, and the reasons for changing it, but rather the procedure of our Standing Orders, which requires a report from the Joint Committee on Statutory Instruments.

The noble Baroness, Lady Hayter, for whom I have enormous regard, has suggested that perhaps we should sit on Friday to see the committee’s report. That sounds a bit like the tail wagging the dog. There is an issue under our Standing Orders that we should receive a report from the committee. Reading the Explanatory Memorandum, I note that the United Kingdom sent a letter dated 22 March from the Permanent Representative of the United Kingdom to the EU. If he could write a letter to the EU, why could a letter not have been sent to the chairman of the joint committee, inviting it to meet to discuss the matter and report to this House? This may sound like a rather pedantic point—

[Lord Kerr of Kinlochard (CB)]

Yes.

[Noble Lords]

Oh!

Leaving the European Union

Lord Kerr of Kinlochard Excerpts

Tuesday 26th February 2019 Lords Chamber

[Baroness Evans of Bowes Park]

I agree with my noble friend. We are all working hard to achieve a deal, but the Prime Minister has made clear that if, following a series of votes in the House of Commons, as set out in the Statement, there is a vote to ask for an extension to Article 50, she will want it to be for the shortest time possible.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is good that the Prime Minister is now ready, à contrecoeur, to contemplate an extension. It is clear—and has been for some time—that an extension is absolutely necessary. However, she says in her Statement that an extension cannot take no deal off the table—and of course that is perfectly true. But she could and should take no deal off the table. If you listen to the voice of business and the nation at large, it is grossly irresponsible to play this game down into the last days and beyond. As the noble Baroness, Lady Hayter, pointed out, we are looking to maintain the threat of no deal throughout the period of extension, however long that is. This cannot be right in the interests of the country.

Leaving the European Union

Lord Kerr of Kinlochard Excerpts

Monday 21st January 2019 Lords Chamber

[Baroness Evans of Bowes Park]

I thank my noble friend and he is absolutely right: although we are working towards a deal, which is what we want to achieve, all responsible Governments have to prepare for a range of contingencies. It is therefore absolutely right that we continue to prepare for no deal.

[Lord Kerr of Kinlochard (CB)]

I am concerned by the suggestion from the noble Lord, Lord Hamilton, about a negotiating advantage. It is a myth. I do not think you strengthen your negotiating hand by saying, “If you don’t give me what I want, I will shoot myself”. This is the “Blazing Saddles” argument, which worked very well for the sheriff in that film but does not work in Brussels. Perhaps I may say to the Leader that there is a third way of avoiding the disaster of no deal: to recognise the inevitable. The noble Lord, Lord Newby, said that we are going to need an extension under Article 50. I believe that that has become absolutely clear, for all sorts of reasons. I also believe that so shocked are our friends on the continent by the chaos and incompetence of our political system here, they would be perfectly willing to concede now that there should be a short extension, in order that we can get our act together.

[Baroness Evans of Bowes Park]

As I have said—the noble Lord alluded to this—an extension requires the unanimous agreement of all 27 member states, so there is nothing that the UK Government or Parliament can do unilaterally to secure it. They are unlikely simply to agree to extend Article 50 without a plan for how we are to get a deal approved. That is what we are working on.

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.

Brexit: Negotiations

Lord Kerr of Kinlochard Excerpts

Thursday 22nd November 2018 Lords Chamber

[Baroness Evans of Bowes Park]

The noble Lord may recall that the British people voted to leave the European Union, and we are delivering that. In response to the noble Baronesses, I said we want to maintain co-operation with certain EU agencies. We will work with our EU partners over the coming months to explore the most effective ways to do that. If we do so and, depending on the level of the relationship, we have also said we will make a relevant contribution.

[Lord Kerr of Kinlochard (CB)]

My Lords, I echo the wise words of the noble Lord, Lord Reid of Cardowan. I ask the Minister please not to oversell. This is not the load-bearing framework that the treaty authors had in mind. This is an aspirational text, neither prescriptive nor proscriptive. The negotiation will take place under Article 218, which means that, on the other side of the table, if one member state objects to something we want, that thing does not happen. Remember too that its scope is far wider than the Ukrainian or Canadian arrangement. The idea, as the Minister just said at the Dispatch Box, that we intend this treaty to come into force by the end of 2020 is absurd. That is unthinkable. It takes on average four years to negotiate these things. Then there is the problem of ratification and, if one country does not ratify, it does not happen. Please do not oversell. The only certain thing is that we face five, six or seven years of uncertainty.

[Baroness Evans of Bowes Park]

Before our withdrawal in March, both sides will undertake preparatory work to enable negotiations to begin as soon as possible. There will be a clear programme to deliver the ambitious timetable, which will be set out in the withdrawal agreement, to ensure that both sides will use their best endeavours to bring into force a detailed future relationship. Because of the possibility that the noble Lord raises, we also have the backstop, the extension to the implementation period. There are best endeavours from both sides to achieve this ambitious relationship, which is in both our interests.

October European Council

Lord Kerr of Kinlochard Excerpts

Monday 22nd October 2018 Lords Chamber

[Baroness Evans of Bowes Park]

I am afraid that I do not think it is appropriate for me to discuss the details of the negotiation. I am sorry that the noble Baroness disagrees, but we are at a crucial time and I do not think that my making statements from the Dispatch Box about some of these delicate issues will be particularly helpful. We want to achieve a deal, and I hope she understands that and would want to help me ensure that I play my part by not saying things that would get in the way of a good negotiation and a good outcome.

[Lord Kerr of Kinlochard (CB)]

Will the Minister explain how our commitment to maintain full alignment with the rules of the internal market and the customs union, which now or in the future support north/south co-operation, the all-Ireland economy and the protection of the 1998 agreement, can be discharged by a short extension of the implementation period? That is a timeless commitment. Can the Minister quote any precedent for an EU negotiation of a wide-ranging association, including a trade relationship, with any third country that has been completed, ratified and come into force within three years?

[Baroness Evans of Bowes Park]

I remind noble Lords that we do not intend to use either the backstop option or the implementation period extension. These are insurance policies. We are committed to achieving, and we expect to achieve, our new relationship with the EU by the beginning of January 2021. These are insurance policies, not things we intend to happen. The reason we are confident about achieving a good deal with the EU is that we are in the unique position of starting with the same rules and being in the same place: we are not coming from different situations, as was the case in other deals the EU put together. That is why we are confident, starting from being together, that we can come up with a good deal going forward that works for both of us.