Brexit: Withdrawal Agreement and Political Declaration

Lord Mackay of Clashfern Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a privilege to follow the most reverend Primate the Archbishop of Canterbury. I feel the responsibility of that and appreciate what he said.

The Prime Minister has been criticised for the so-called red lines. I think these were very reasonable attempts to focus on what the referendum had done and to try to follow through on the intention of those who had voted in the majority. Therefore, as far as I am concerned the Prime Minister is seeking to implement the recommendation—the advice—she got in the referendum. It is against that background that one has to evaluate what has happened. The advisory time is seven minutes, and I am determined to keep to that. Therefore, I shall be selective in what I talk about, because I could easily go on for much longer.

When I was appointed Lord Chancellor in 1987, one of my responsibilities was the nomination of judges in Northern Ireland and the political supervision of the court system there. Shortly before my appointment, a Lord Justice had been blown up after crossing the great boundary between Northern Ireland and Ireland; the Lord Chief Justice had been shot at; and a Lord Justice’s wife had come home from shopping to find a note on the kitchen table saying, “Get out quickly, because the place is going to be blown up”. She did get out quickly and her home was blown up. So the dangers facing the judiciary of Northern Ireland then were very severe, and it is extraordinary how they were able to live in those surroundings.

The peace and security of Northern Ireland are very much an issue in my life, and I will do everything I possibly can to defend them. The Belfast agreement, and all that followed it, is a wonderful step forward, and the situation in Northern Ireland is now, happily, very different from when I took office. But it is not perfect, and we need to be careful to secure what has happened.

The peace and prosperity of Northern Ireland is not a temporary matter. I would like it to last as long as possible. The steps taken to secure it should therefore also be permanent. Others in this House who had political responsibilities in Northern Ireland agree that the only way to secure a soft border or eliminate a hard border is to apply pretty similar customs rules on both sides of the border. That is the purpose of the backstop.

The backstop will be permanent if it is necessary for it to be permanent. I can see no way out of that if you like the peace and prosperity of Northern Ireland—as I said, I certainly do. The necessity for the backstop to be permanent is obvious, unless and until the conditions are satisfied in which it can be changed. One of those conditions is the agreement of a new customs arrangement between the United Kingdom and the EU. That is one objective of the agreement that has been reached.

The withdrawal agreement is a binding legal agreement. The political proposal is not binding in that sense, but it is the agenda for an agreement. The agreement will be enforced by the law of the United Kingdom, as well as by the law of the EU. My view of these documents—and I was glad that Mr Trump was able to give a view on them, having read the whole lot very quickly—is that they are well written but complicated. As legal documents go, they are readable for those who have not been burdened by being lawyers. The agreement requires that the treaty that follows on the political agenda will be brought into force with the best endeavours of the two sides. That is a legal requirement that can be enforced under the procedures in the withdrawal agreement.

The other day, the noble and learned Lord, Lord Goldsmith, asked what could be done on enforcement. He correctly pointed out that although it would not be an arbitration tribunal that fixed the new agreement, it would have the power to enforce the best endeavours provision. Therefore, I would expect the result to be a full treaty according to these provisions within the time allotted. My time allotted has finished.