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

Lord Thomas of Gresford Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, like the noble and learned Lord, Lord Goldsmith, when I put my name down for this debate I was expecting the Attorney-General to have come back with something that we could discuss on a legal plane. We have to admire the tenacity of the Attorney-General in refusing to temper his original note of 3 December, despite the overwhelming political pressure on him to do so. He has said, in terms, that his professional reputation as a lawyer is far more important to him than his reputation as a politician. He advised in December that the Northern Ireland backstop is intended by all parties to be temporary, and the assumption is that it will be superseded by a relationship agreement between Brussels and London. In the absence of such an agreement, the backstop is intended to endure. He said that the solution in such a scenario would be political and not legal.

This has not been sufficient for the Brexiteers. Their view, as expressed by the noble Lord, Lord Pearson of Rannoch, in his inimitable way, is that the European Union is a continuing conspiracy to hold the United Kingdom fast within its grasp. Their demands are for a time limit to the backstop or a unilateral exit route. The alternative arrangements they also propose would involve the development of a technology that does not exist, or at least does not operate satisfactorily, anywhere in the world. They demonstrate a complete lack of trust in the European Union. Similarly, the DUP. That party, which does not represent the majority view in Northern Ireland, seems totally incapable of perceiving the potential economic benefit to that Province if it were able to trade directly and freely in a customs union and single market with the EU and at the same time have direct and free access to the UK. Instead of promoting the positives, they mouth with suspicion the negatives.

So Mr Cox was sent off to negotiate legally binding clauses to add to the Northern Ireland protocol. This shows a gratifying, if unexpected, trust in the legal profession and the judiciary. Lawyers, under this plan, would determine when the backstop has served its purpose—a massive decision with implications for the people of this country. Yet, in the absence of political agreement, it is seriously proposed that lawyers should be instrumental in prising open the economic, social and legal ties which have bound us together with the EU for more than 40 years. The withdrawal agreement provides for an arbitration process, but that model was apparently not sufficient. If a decision cannot be agreed in the joint political committee, the issue, under the withdrawal agreement, goes to a panel of five arbitrators, but any issue as to the interpretation of EU law must be referred to the European Court of Justice. Of course, for reasons I have never been able fully to fathom, the European court is anathema to the Brexiteers as a matter of faith, although the United Kingdom has the best record of success in that court of any EU country.

No matter—Mr Cox has done his ingenious best. It seems he has proposed a separate arbitration panel, with no access to the European court, to decide when the backstop has served its purpose. The membership we do not know, but let us assume it is similar to the panel agreed in the withdrawal Agreement. He has rightly conceded that it cannot be the purpose of lawyers, however eminent, to determine whether the sovereign United Kingdom or the EU and its sovereign states are acting in bad faith. Unless you are a truly head-banging conspiracy theorist, you cannot expect a panel of arbitrators to determine that a sovereign state, in legitimately pursuing its own interests as it sees them, is acting in bad faith.

Mr Cox sought therefore to introduce the Brussels negotiators to the concept of “the reasonable man”—the man on the Clapham omnibus. That is a legal tag which has done the rounds in the field of the law of negligence in every common law country—it recently surfaced in Hong Kong as the “man on the Shau Kei Wan tram”. The issue he proposed for the arbitrators to decide was whether the UK would be acting “reasonably” if it sought to terminate the backstop.

The arbitrators would not be concerned with construing a difficult line of legal text but with deciding a question of opinion: is the UK, or the EU, acting “reasonably” in accordance with the standards of the man on the Clapham omnibus? I do not knock the Clapham omnibus; the No. 87 bus which runs from Westminster to Clapham has many distinguished regular passengers, not just myself and my noble friend Lady Walmsley, but the noble Lords, Lord Faulkner of Worcester and Lord Cope, the noble Baronesses, Lady Gale and Lady Morris, and, above all, the noble Lord, Lord Taylor of Holbeach—although he generally does not go much beyond the Tate Gallery. It would be very hard for arbitrators and lawyers in Brussels or elsewhere to guess what we on the 87 bus collectively thought was reasonable. Hence, I regret to say that terms such as “crazy” and “bizarre” have been reported from the EU side on its introduction to this entertaining concept invented by a Victorian judge.

The plane was standing by at Northolt, and may have taken off, but what possible gain can there be for the Prime Minister to plead with Mr Barnier to repeat for the umpteenth time that the backstop is intended by the EU as well as the UK to be temporary? Why do not the ERG, the DUP and sundry other leavers take him at his word? Can diplomacy exist at all in the world without a measure of trust? Can there be compromise, as the noble Lord, Lord Howard, talked about, without trust? Mr Cox said in December that the solution as to when the backstop would end would be political and, of course, he was absolutely right. Let us leave it at that.