Brexit: Negotiations

Lord Reid of Cardowan Excerpts

Thursday 22nd November 2018 Lords Chamber

[Baroness Evans of Bowes Park]

On the noble Lord’s first question, I answered it in my reply to my noble friend’s question when I said that we intend to have the future relationship come into force by the end of 2020. On the noble Lord’s second point, only the CJEU can bind the EU on the interpretation of EU law, so we have agreed that where a dispute raises a question of interpretation of EU law, the arbitration panel can refer this question to the CJEU for interpretation. What it cannot do is ask the CJEU to resolve the dispute. That will always be done by the independent arbitration panel. An ability for the CJEU to provide an interpretation of EU law is not the same as resolving disputes. The EU has been clear that that must fall to an independent arbitration panel. This respects the principle that the court of one party cannot resolve disputes between the two.

[Lord Reid of Cardowan (Lab)]

My Lords, first of all, I find this a comprehensive and interesting list of subjects for future discussion—but that is all it is. I caution the Minister against overselling it as something else. That—the misrepresentations—was part of the problem with the original referendum. For instance, the noble Baroness says:

“It ends the jurisdiction of the European Court of Justice in the UK”,


but this declaration does no such thing. It is not a deal, even leaving aside the fact that the 27 others have not agreed it yet. Even when they have agreed it, it will not be a deal; it will not be an agreement—or rather, it will be an agreement to look for an agreement at some future stage. So will the Minister please not oversell it?

On the European Court of Justice, I am not a lawyer—as I have said, that is neither a boast nor a complaint—but I agree with the noble Lord, Lord Hannay. What the Minister says is just not true. She is inadvertently misreading this. Not only does paragraph 132 say:

“The Parties will base arrangements for dispute settlement and enforcement on those provided for the Withdrawal Agreement”,


but paragraph 134 says:

“Should a dispute raise a question of interpretation of Union law, which may also be indicated by either Party, the arbitration panel should refer the question to the CJEU as the sole arbiter of Union law, for a binding ruling”.


Crucially, it then goes on to say:

“The arbitration panel should decide the dispute in accordance with the ruling given by the CJEU”.


So it does not give just a ruling, it gives a binding ruling, which the arbitration panel must decide in accordance with the ruling given by the European Court of Justice.

I am not asking for a legal answer at present. All I ask is that Ministers be very careful that they do not try to oversell this as somehow a deal that has been done and agreed. It is a framework for future discussion, kicking the can down the road; that may be necessary but it is no more than that, so I ask the Minister not to misrepresent it.

[Baroness Evans of Bowes Park]

I think I was clear; I hope I was. I said that it sets out a clear vision and is a framework for the future relationship between the UK and the EU, and that it provides the negotiating instructions that will aim to deliver the full legal agreement by the end of 2020. We are on both sides committed to turning this into a legally binding treaty as soon as possible. In relation to the noble Lord’s points about the CJEU, I gave the answer to the noble Lord and I can only say again that an ability for the CJEU to provide an interpretation of EU law is not the same as resolving disputes.