Brexit: Withdrawal Agreement and Political Declaration

Lord Owen Excerpts

Wednesday 5th December 2018 Lords Chamber

[Lord Owen (Ind SD)]

My Lords, the Sunday Times has published a series of letters, the first one of which was the Prime Minister’s letter to the country. We then had Mr Blair’s letter to the EU. This week, I wrote to Members of the House of Commons; they had that letter in front of them on Monday morning. I will draw on it, if I may.

Let us be under no illusion. If we reach a situation where the House of Commons cannot forge an acceptable agreement, it is deadlocked. Then, the House of Commons and all of us will have lost our basic democracy. The referendum did not enter into what we would do. The people made one judgment: that they wanted to leave. They suffered a grave blow at 7 am when the former Prime Minister walked out on the job that he had told us he would stay with—in marked contrast to Wilson and Callaghan, who made it clear in 1975 that they would carry out the will of the electorate. During the campaign, they made it clear that they would do so.

What do we face now? I suggest that Members of this House start looking at what happened yesterday in the House of Commons when, very wisely, Back-Bench MPs and others took control of this process. The Government chose not to try—it would have been very difficult—to get consensus across the political parties through their leadership. Now, if you look at the speeches of Sir Oliver Letwin and Hilary Benn, you see the basis of an attempt to find an agreement in the Commons. We must wish them well.

In my letter to the Commons, I said very clearly:

“Your votes on December 11 are your choice and yours alone. This is about what the government and the UK should do if the Commons decides not to endorse the EU withdrawal agreement”.


There is an “if” there. After reading yesterday’s debate, nobody can think of any more ifs or buts. The agreement will go down. In the remainder of our debates, I beg this House to address the question of what will be offered to the people of this country by the House of Commons. It has already offered us the European Union (Withdrawal) Act 2018, which, unless it is blocked, will come into effect on 29 March next year. That is less than four months away.

What can be done? If you lose a major vote in the House of Commons, you have to decide what you will do. It is no use saying, “We will come back and tell you 21 days later”. It is vital that the world financial markets know immediately how the UK Government intend to proceed. It would be damaging even to wait until early the next day. That the Government should allow speculators and currency markets to dictate a repeat vote on the withdrawal agreement in some weeks’ time is totally disreputable and extremely dangerous. The House of Commons will not live with it. Let that idea be pushed aside.

When the withdrawal agreement is rejected, Parliament must seize the initiative; it must stop being the supplicant under Article 50 and not expect the 27 other nations that have performed their part of the agreement with great difficulty to revise it straightway. They will not do so. It is essential that we provide another reputable forum for debate and discussion. It may not achieve anything. At the end of this short period, we may not be able to get an agreement in the House of Commons. They will then be faced with voting down the withdrawal Act.

So what can we do? The Cabinet will know the result beforehand, and it must meet beforehand and tell her the sort of thing that she must say. It must tell the Prime Minister bluntly: “If you have lost the vote, you must open up another option to this”. Some people say that there are no options. On the best legal advice, I suggest a Prime Minister’s Statement immediately after the withdrawal vote is lost. It has been carefully looked at by experts in the EEA and by lawyers, particularly international lawyers. It goes like this:

“As a consequence of tonight’s votes I am sending letters immediately to all the other 31 parties to the European Economic Area Agreement, the EU itself, its 27 member states, and the three EFTA states. The letters will state our intention to continue in the European Economic Area as a non-EU member from the end of March 2019. We intend to do this because we as a country signed the EEA Agreement as the UK in 1992 and we have not as the UK given the 12 months’ notice in writing required to withdraw from that agreement”.


We would withdraw from that agreement under the terms of the European Union (Withdrawal) Act, but we have not done so now and it is perfectly possible for it to be continued. She would go on to say:

“If EFTA or the EU countries challenge our entitlement then we will take our case to arbitration under international law using the Permanent Court of Arbitration which was endorsed by all EU countries in the Withdrawal Agreement. I am writing to the Secretary-General of the PCA. I hope this action will unite many different viewpoints in Parliament. It has the merit of being very simple. We, like the three other non-EU members of the EEA, would not be starting out as part of the EU customs union, though we could pursue it. We could pursue our own EU-UK free trade agreement on the lines of Canada plus plus plus—President Tusk added the three pluses at one time proposed by the EU—and we will immediately start with other free trade agreement negotiations. There is no necessity for us to join EFTA. We would not be fixing any time limit as to how long we stay in EEA. Like the other three non-EU countries, we would continue to be bound, as are all parties to the EEAA, to give one year’s notice of leaving. We would not ask anything more from the EU than we are entitled to under the EEAA”.


I am under a strict time limit and cannot include the other four paragraphs. They are in the Times, and I will make them available if anyone wants to see them.

I beg this House to be constructive in helping the House of Commons do its duty. It is going to be a very difficult four months, but we need this other extra option. It is our right to stay in the EEA. Within that negotiation, we would be entitled to ask the EU to look with us at those parts of the withdrawal agreement which are very helpful to them and to us. One of them was the standstill arrangement until December 2020. We were ready to pay for it, and we would still be ready to pay for it. The derogations in the EEA agreement allow us to make it within the EEA agreement. We are due to pay £39 billion; about £17 billion of that is what we definitely owe them. The extra is for having the privilege of having another length of time. I agree so much with what the noble Lord, Lord Whitty, said. We have to have more time. The EEA option offers us more time.

To the leader of the Liberal Party I say: “Don’t talk about Norway supinely accepting it”. There is nothing supine about the Norwegian people. They have fashioned a very interesting agreement, keeping their own sovereignty while not being in the EU, having an EFTA Court, and having a different arrangement. Going on disparaging it, as the Government have done over the last few months in order to have no choice, is not doing a service to democracy in our country, in the European Union or in the European Economic Area.