Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Pearson of Rannoch Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Cormack, although this tends to throw into sharp relief the inability of many of us to match his enviable skills of extemporary exposition.

Over recent months, I have found much of the Brexit process deeply depressing and disheartening, not least the apparent total disregard paid by the other place to the debates held in your Lordships’ House. It is true of course that under Section 13(1)(b) of the 2018 withdrawal Act only the House of Commons has to approve any deal, although under Section 13(1)(d), an Act of Parliament, and therefore your Lordships’ agreement, is required to implement the withdrawal agreement element of any overall deal. Why, however, does Section 13(1)(c) of that Act require a debate on any deal in your Lordships’ House unless it is thought likely to assist the House of Commons in its consideration of these questions? Does it? Do they read our debates in Hansard? Frankly, and sadly, I question that.

In these debates, time and again, I am struck by the quality of your Lordships’ contributions and the depth of expertise and experience that informs so many of them. I say this in relation to the views expressed on all sides of the debate, not merely those that happen to coincide with my own. When I speak of all sides of the debate, there are basically three approaches urged here: one is to buy into the deal; another is to remain in the EU; and the third is to leave with no “overarching deal”, as the noble Lord, Lord Howard, puts it. That final view—the outcome which he and a number of others who have spoken in this debate plainly prefer—is surely there and we need to have regard to it, frightening though I find it, and strongly opposed to it though I am. Therefore, I question whether the binary question of the further referendum proposed by the noble Lord, Lord Newby, which totally ignores and overlooks it, would be the proper one to put before the country.

I am opposed to any future referendum. I am now converted to the view that we should leave the Union on the terms offered, with no further referendum, on 29 March, or as soon as possible thereafter—an extension of a few weeks may be required to enact the necessary implementing legislation. I have no doubt that a short extension would be granted, for the explicit purpose of implementing a deal. As to the sort of long delay proposed by some—Sir John Major, for example, sought 12 months in his letter in Friday’s Times, and the noble Lord, Lord Adonis, suggested a 21-month extension in his “Thunderer” article in today’s Times, in neither case indicating with any clarity what precise purpose such an extension would be intended and expected to achieve—I am profoundly doubtful about whether the other 27 member states would unanimously agree to that. In any event, for my part, I strongly share the view of the noble and learned Lord, Lord Hope, the noble Lord, Lord Bridges, and several other participants in this debate that we should not request this in the first place.

I said earlier how impressed I had been by the contributions of your Lordships on all sides of the debate, but I should perhaps make one exception to that encomium. There appear to be one or two among your Lordships—it would be invidious to name them—who, to my mind, are labouring under a profound misapprehension on our entitlement to extend the Brexit process to negotiate a fresh and better deal. In our latest Brexit debate on 27 February, one of your Lordships said that we should seek a very long extension, if necessary, for a further referendum. So far so good, though as indicated I personally strongly disagree. The speech then went on in a way that seemed clearly to indicate a total misunderstanding of the legal position. It suggested:

“The deadline must be extended well beyond 29 March. Article 50 must be revoked—we are still in time to do that. Then, as full and remaining members of the European Union, we should embark on orderly negotiations to leave the European Union. Once those have crystallised into a concluded agreement, regulating the ultimate arrangements between ourselves and the European Union, that agreement”—[Official Report, 27/2/19; col. 267.]


here I paraphrase—could then be the subject of a further referendum, or, if the electorate were to agree, it would be left to Parliament.

The short point is that if Article 50 is revoked, that precludes any possible right to embark on orderly negotiations. We can revoke Article 50, to quote the language of the CJEU, the Luxembourg court, only if that revocation is,

“unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State”.

Such a revocation would necessarily imply that the United Kingdom is now, after all, intent on remaining a fully committed member of the EU and that we do not simply intend to give a further notification. Abuse of right is an established principle of EU law and it is really difficult to give any more obvious illustration of such an abuse than revoking the Article 50 notice essentially as a device to circumvent the requirement for unanimity of the other 27 for any extension of the two years allowed. There can be no question of the other 27 renewing or continuing negotiations on such a revocation.

I have no wish and indeed no time to weary your Lordships by repeating arguments that I advanced in early debates—although I spared your Lordships in the last one—in favour of accepting this deal but, in common I believe with the great majority of the population of this country and most of those with business interests, I urge the other House to buy into this deal on offer.

[Lord Pearson of Rannoch (UKIP)]

My Lords, would the noble and learned Lord care to comment on a Written Answer I recently received from the Government to the effect that—

[Lord Taylor of Holbeach (Con)]

My Lords, I think the noble Lord is perhaps testing the patience of the House by his constant interruptions. The noble and learned Lord had indeed sat down. I do not think that it is right that the noble Lord should raise another issue. He is entitled to raise purely points of clarification.

[Lord Pearson of Rannoch]

“Masters unfair to Molesworth.”

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, mere words can hardly do justice to my feelings on being invited to close yet another debate on Brexit, particularly so shortly after a debate that covered the same territory and since when, it is acknowledged, so little has changed. If there is one element of this debate that will stand out for me, it is the suggestion from the noble Baroness, Lady Hayter, that I would still be able to play the boy. The noble and learned Lord, Lord Goldsmith, sought to draw an analogy between the role of my right honourable and learned friend the Attorney-General and that of Godot, but of course it will be obvious to all in this Chamber that my right honourable and learned friend had far greater presence and substance on the EU stage than Godot ever managed in a two-act play.

That continues; the noble and learned Lord asked whether those negotiations have stalled, and the answer is most certainly no. My right honourable friend the Prime Minister is, as some have already discerned from the media, traveling to Strasbourg, where it is proposed she will meet with Mr Juncker at 9 pm Strasbourg time, which is 8 pm our time. That meeting is being held with a purpose, and it is being held because there continues to be dialogue between us and the European Union over the withdrawal agreement. I am sure noble Lords will appreciate that it is not for me at this time to anticipate the outcome of those discussions; nor is it for me to disclose the scope of those discussions at this time. However, it is sufficient perhaps to observe that such discussions will take place, and we look forward to their outcome once it becomes clear.

My noble friend Lord Hodgson of Astley Abbots made the clear and well-established point that, in the context of negotiation—which, as my noble friend Lord Finkelstein observed, requires more than one party when you are doing a deal—the tough issues are always sorted out at the 11th hour. Indeed, I have no doubt that the noble and learned Lord, Lord Goldsmith, will recall from his own experience in commercial litigation that, at least in the past, the most intractable and difficult disputes were very often finally resolved at the door of the court. These agreements almost invariably occur at the 11th hour.

In that context, I turn to the questions raised by the noble Lord, Lord Newby. He enumerated seven, but I respectfully observe that they tend to merge with each other. It is true that the Prime Minister is going to Strasbourg—indeed, she may already be there—and it is certainly true that she is taking with her a willingness to listen and to discuss further the resolution of the issues surrounding the withdrawal agreement. She is proceeding in a mood of optimism, as one would in the context of any such discussion. That will lead on tomorrow to the meaningful vote in the other place. It may be that further news will become available before any Motion is moved tomorrow, but that is the nature of negotiation, and that will be accommodated as and when it is required.

The noble and learned Lord, Lord Hope of Craighead, referred to the issue of delay; I concur with his and other noble Lords’ observations about the dangers of delay in the context of the ongoing process. It may be that there will be an amendable Motion in respect of exit day. However, a statutory instrument would also be required in the event of further changes to the exit date, assuming there was consent from the European Union, because of the definition of that term already contained in the 2018 Act. But it could be done. As for Little Jim, I am beginning to feel some sympathy for his condition. Slow he may have been devoured, but at least it was the end.

The noble Lord, Lord Pearson of Rannoch, and my noble friend Lord Saatchi suggested that negotiations be carried on with other parties in some other manner but, with great respect, Article 50 provides that we negotiate with the European Union, and the European Union has appointed the Commission to negotiate on its behalf. That is where we stand.

[Lord Pearson of Rannoch]

My Lords, will the Minister therefore comment on the Written Answer received from the Government, which states that the United Kingdom has resiled unilaterally from 52 treaties since 1988 and answer why we cannot do that now in the interests of continuing free trade with the people of Europe, the disappearance of the Irish problem and the peace and prosperity in front of us?

[Lord Keen of Elie]

There is a very material distinction between being able to resign from a treaty which makes provision for such a move and denunciation of a treaty. We have no intention of denouncing our obligations. We have proceeded under the mechanisms provided for by the Lisbon treaty—namely, Article 50.

The noble Baroness, Lady Quin, alluded to her background and experience in Europe, which I acknowledge, but I notice that we have seen the European Economic Community transmogrify through Maastricht and Lisbon into something quite distinct from that ever anticipated by its founders.

The noble Lord, Lord Thomas of Gresford, wondered why the DUP could not see the economic benefits of the backstop. I have no doubt that the DUP can recognise such economic benefit as there may be, but it sees more clearly the constitutional challenges that could be presented. It is that which has caused it concern.

My noble friend Lady Noakes observed that there was really nothing to debate at this stage. It appears to me that noble Lords have raised several issues for debate here, but of course we are left in anticipation of what may occur during the course of negotiations that are still to come.

The noble Lord, Lord Wigley, made it quite clear that, in his mind, all roads lead to Rome—or perhaps not Rome but a second referendum. I acknowledge his desire to go in that direction.

My noble friend the Duke of Wellington made a plea to all parties to compromise, and that is indeed what we seek to do here. He underlined how important it was that we should leave on 29 March with a deal. It is the Prime Minister’s wish that we should leave on that date with a deal.

The noble Lord, Lord Kerr of Kinlochard, in his inimitable fashion, observed that there were no new facts and that it was therefore necessary to deal with fantasy. I respond: it is never necessary to deal with fantasy and I would not intend engage with it at this stage.

The noble Lord, Lord Dobbs, asked about the meaning of a hard border. That is a border that includes any physical infrastructure with related checks and controls. It is not something that anyone desires for the island of Ireland.

The noble Lord, Lord Rooker, in alluding to the proposition that 16 year-olds should have the vote in a second referendum, observed that it was their future. I say, albeit with a degree of optimism, that I also regard it as my future. Therefore, I claim an equal interest in the outcome of the present negotiation, albeit not for necessarily the same length of time.

The noble Lord, Lord Bethell, alluded to the difficulty and dangers that would face us if we were found to breach the trust that has been placed in Parliament as a consequence of the referendum. I say no more of that.

The noble Lords, Lord Horam, Lord Armstrong and Lord Inglewood, referred to the proposition that we find ourselves in a mess. We find ourselves in a very challenging position because we are engaged in a deep and difficult negotiation in which we should expect the EU 27 to represent properly their interests, not ours. I acknowledge that, but I would observe that the darkest hour is often just before the dawn. As dawn rises in Strasbourg, we hope to see the outcome of the further, potentially final, negotiations that will bring the withdrawal agreement before the other place tomorrow.

The noble Baroness, Lady Crawley, alluded to EU minimum standards in the context of workers’ rights. I would point out that the United Kingdom stands well above those minimum standards in many areas, particularly in relation to maternity benefits, paternity benefits and elsewhere. Indeed, it has been reported that we stand second only to Sweden in the standards we maintain, so we are not driven by Europe on such standards. Indeed, I suggest that we drive Europe forward in many instances.