Queen’s Speech

Lord Mackay of Clashfern Excerpts

Tuesday 15th October 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I do not feel competent to enter into all the speculations that the noble Lord has just made. It is somewhat of a surprise to me that Mr Churchill thought that the European Union was an important part of the UK’s arrangements with Europe. I think that the Council of Europe was what he had in mind, and I believe that that institution has had a very important role ever since he had the idea of setting it up.

As I said, I will not get involved in speculation about history. Rather, I am inclined to look at what we are supposed to be doing, and I do so in the presence of the distinguished author of Article 50—and subject to what he has to say about this, if he wishes to correct me later. However, I claim to have a certain amount of experience of looking at documents and European documents in the European Court of Justice, albeit a long time ago, although experience of that kind tends to stick with you.

First, I think that Article 50 is quite plain that the withdrawal agreement is one thing—it is an agreement—and, apart from and distinct from that, are the future relations, which are the subject of a framework, not a legal contract. The withdrawal agreement is definitely an agreement and is specified as such, but the framework is a distinct and therefore, I believe, less precise arrangement than the withdrawal agreement.

Secondly, it is the withdrawal agreement and the withdrawal agreement only that determines when, or whether, we leave the European Union. The date is fixed by the withdrawal agreement and, when it comes into force, we leave the European Union. If there is no agreement, Article 50 says that the member state wishing to leave will leave two years after the original request or at the end of an agreed further period.

I do not profess to know anything about the negotiations except what I read about them in the newspapers, although they do not all say the same thing and I do not find the descriptions of what is going on particularly clear. However, I feel strongly that the future relationships are not, and should not be, part of the withdrawal agreement, and the attempt to make them so destroys the purpose of the distinction between the two.

The arrangement as envisaged in Article 50 seems to be that, once a member state has withdrawn under the terms fixed in a withdrawal agreement, it is no longer a member state; it is a sovereign nation that can enter into negotiations for the future, and those future relationships are to be negotiated then. There is a certain amount of bowing to that in Mrs May’s agreement, if I can call it that. There is a good deal of reference to what is to happen in the future.

I was willing to take the view that the risk of the backstop coming into force was very small and that it was therefore something that Parliament should be able to accept. However, the more I think about it, the more I am of the view that the backstop has no place whatever in the withdrawal agreement. As a possible very simple draft, I have suggested as an amendment to the May agreement that all provisions dealing with future relationships come into effect only to the extent agreed upon in the agreement envisaged in the political declaration. I submit to your Lordships that that clarity is necessary if we are to avoid getting into very great difficulty. I cannot see, for example, how the detail of customs unions and the like can be determined without knowing the detail of the trade agreement; yet the trade agreement is for the future—it is a future relationship.

I strongly take the view that we must try to work in accordance with Article 50. We are not here to make up a new basis for leaving the European Union; that has been very clearly specified. For a legal document, it is extremely clear and makes the very important distinction that I have tried to press between what goes into the withdrawal agreement—which reflects the present situation—and determining the future relationship. Agreeing, for example, what is to happen about paying money, and to people from other parts of the Union who are in the UK and people from the UK who are in other parts of the Union, has to be determined at the time of the withdrawal agreement. That having been done, the withdrawing member is then independent and able to seek agreement on the lines of future relationships.

I understood at the time of the initial discussion on this matter that the European Union had said it was not prepared to discuss the future relationship until the withdrawal agreement was settled. Instead, the two appear to have been amalgamated in a way that makes for extreme difficulty. I think it is very important that we keep Article 50 in mind. I regard it as a tribute to my Scottish colleague that he was responsible for the draft.