European Union (Withdrawal) Act

Nick Thomas-Symonds Excerpts

Tuesday 15th January 2019 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am happy to open today’s debate for the Opposition and to follow the Attorney General—I am, of course, grateful for his remarks over the past hour. I was also pleased to see his letter to the Prime Minister yesterday, which gave advice on the backstop protocol and the latest exchange of letters, and to receive it without the need for a contempt motion on this occasion.

On 3 December, I was sitting at this Dispatch Box when the Attorney General made his statement on the legal position. He said of Members:

“It is time that they grew up and got real.”

He had even said to my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman):

“There is nothing to see here.”—[Official Report, 3 December 2018; Vol. 650, c. 557-563.]

After the Government were found to be in contempt of Parliament, however, and he had published his advice the next day, it turned out that there was everything to see here, and that it was the Government who needed to get real.

Let us be clear about what the Attorney General advised. What did he say about the backstop protocol? He said:

“Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein.”

Which parts of the backstop are more likely than others to remain, even in the event of a trade deal being agreed, he has never actually told us. He added:

“There are numerous references in the Protocol to its temporary nature but there is no indication of how long such temporary arrangements could last.”

On Northern Ireland, incidentally, the Attorney General said:

“GB is essentially treated as a third country by NI for goods passing from GB into NI”—

those are his own words. The Attorney General even said:

“The Protocol appears to assume that the negotiations will result in an agreement.”

Are we in the House to assume, given the conduct of the negotiations, that this Government will be able to negotiate a full future trade deal in time for the protocol not to come into effect?

[The Secretary of State for Environment, Food and Rural Affairs (Michael Gove)]

Yes.

[Nick Thomas-Symonds]

Nick Macpherson, the former permanent secretary to the Treasury, disagrees with the Secretary of State. I know that the right hon. Gentleman is not a fan of experts, but perhaps he will listen to this one for a moment. Mr Macpherson said:

“There is no way the UK will negotiate a trade deal with the EU by December 2020. Even 2022 is optimistic. Mid-2020s more likely.”

As a matter of law, as a shadow Law Officer, I ask myself whether there is anything to prevent the backstop from becoming permanent:

“As a matter of international law, no there is not—it would endure indefinitely, pending a future agreement being arranged”.—[Official Report, 3 December 2018; Vol. 650, c. 553.]

They are not my words, but those of the Attorney General in this House.

I have to state, clearly, for the House that, as the Opposition, the Labour party is committed to the Good Friday agreement—an agreement that my constituency predecessor, Lord Murphy of Torfaen, helped to negotiate when he chaired the peace talks. That was one of the greatest achievements of any Government since 1945. Labour Members are committed to the long-lasting peace that has been achieved since 1998 and care deeply about the livelihoods and communities of the people who live on the Northern Ireland-Ireland border.

Our position is that a permanent customs union, with a say in external trade deals, a strong single market relationship and guarantees on rights and protections, would have rendered a backstop unnecessary.

[Michael Gove]

Name me a single other country that is in a customs union with the EU that has a say over trade deals. Is not this an unprecedented legal and political novelty of the kind that is rightly called a unicorn?

[Nick Thomas-Symonds]

Let me be clear that I would want our own arrangements. The Secretary of State asks me to give an example of that particular theoretical possibility. It is not one that I wish to emulate, but Turkey is one of them, if he actually looks at it. Secondly—[Interruption.] No, let me respond to the Secretary of State on this. He will vote this evening for a backstop that itself contains a bespoke customs arrangement—[Interruption.] It has a say, and that is the difference, as the Secretary of State should admit.

[Michael Gove]

You’re wrong.

[Nick Thomas-Symonds]

No, I am not.

Let me be clear: this backstop provides only a bare bones customs union, and that is why we cannot support it.

[Lady Hermon]

May I inform the hon. Gentleman—I am sure he already knows—that the vast majority of farmers, businesses, fishermen and community leaders in Northern Ireland strongly support this deal negotiated by the Government? I heard his warm words about his support for the Good Friday agreement, but actions speak louder than words. Voting down the Brexit deal tonight will be a clear signal that the Labour party does not care about the consequences for the Good Friday agreement.

--- Later in debate ---

[Nick Thomas-Symonds]

I have great respect for the hon. Lady, but I fundamentally disagree with her final remark. There is a commitment to the Good Friday agreement among Labour Members. My constituency has great pride in the agreement because the peace talks were chaired by my predecessor—we have great respect for it and want to protect it.

Let me be clear why we cannot support the bespoke customs union within the backstop: it would have no proper governance; firms based in Britain, rather than Northern Ireland, would be outside the single market facing barriers to trade; and the protections for workers and the environment would be unenforceable non-regression clauses that would see the UK fall behind over time. The arrangement falls far short of what Labour has argued for.

What other routes are there to an exit from the backstop? I asked the Attorney General about international treaties that the UK has no unilateral right to terminate. His response was to direct me to the Vienna convention on the law of treaties. Even if it applied—and it only applies between states—the Attorney General knows this is clutching at straws. First, it is said, we could argue that the EU was not using “best endeavours” to complete our future trade agreement and that that constituted a “material breach” under article 60 of the convention. The Attorney General has said, in relation to article 2.1 of the backstop protocol, that

“it is the duty of the parties to negotiate a superseding agreement. That must be done using best endeavours, pursuant to Article 184 of the Withdrawal agreement. This is subject also to the duty of good faith, which is both implied by international law, and expressly created by Article 5 of the Withdrawal Agreement”.

But he has also said:

“The duty of good faith and to use best endeavours is a legally enforceable duty. There is no doubt that it is difficult to prove.”

Again, those are the words of the Attorney General. He knows that that is the case.

Secondly, we could try to argue that there had been a “fundamental change of circumstances” under article 62 of the Vienna convention, but we could not credibly argue that entering the backstop was such a change in circumstances when the situation is clearly set out in the withdrawal agreement in such a way. To say that a scenario we are all aware of and debating now represents a fundamental departure would not wash with anyone, as the Attorney General knows. It is not so much an airlock as a padlock, and it is a padlock with two key holders, of which we are only one.

What changed over Christmas? What has been achieved by delaying the vote? The Secretary of State for Environment, Food and Rural Affairs told us on the morning of the vote that it was

“definitely, 100%, going to happen”.

We all know what happened after that—it is one of many incidents during this process that has led many of us to disbelieve so much that the Government say. The Prime Minister said in her statement later that day:

“I have heard those concerns and I will now do everything I possibly can to secure further assurances”.

The Leader of the House said:

“The Prime Minister has been clear that the vote will take place when she believes she has the legal assurances that Parliament needs that the backstop will not be permanent.”—[Official Report, 10 December 2018; Vol. 651, c. 25-84.]

The International Trade Secretary, went even further, saying that it would be

“very difficult to support the deal without changes to the backstop”.

He was not sure that the Cabinet would agree for it to be put to the House of Commons.

What actually happened? The Prime Minister went to the European Council but could not persuade leaders to give her the conclusions she wanted. The Christmas break came and went. We got a document on commitments to Northern Ireland that did nothing to change the legal text and then, yesterday, letters appeared between the Prime Minister on the one hand, and the President of the European Council and the President of the Commission on the other.

[Anna Soubry]

The hon. Gentleman is making a case about trust, and that is what the country is being asked to do—make this great leap of faith. We do not know what our future trading and security relationships will be. The sorry story is that all the way through the past two and a half years we have had a series of promises that have not been delivered. He will remember, for example, the then Secretary of State for Exiting the European Union, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), saying at the Dispatch Box that we would have a deal before we left that would convey the “exact same benefits” of our current membership of the single market and the customs union. That is what is troubling people. This is a blindfold Brexit and that is why people will not vote for it.

[Nick Thomas-Symonds]

The right hon. Lady is right and I am sure that she has noted the inconsistency. The Attorney General said only a few moments ago that we could not expect to have anything detailed negotiated at this stage, but that is precisely what the Government had previously promised. How are we supposed to believe those conflicting statements?

[Karin Smyth (Bristol South) (Lab)]

That point is exactly at the heart of this question of trust. The Attorney General just committed the EU to not agreeing to future trade deals, in response to our request for a customs union, but he refused to say—the Government still refuse to do so—whether the Government will commit to a customs union in that future trade agreement. If they were to do so, there would be no need for this discussion about the backstop or about the matter of trust that the right hon. Member for Broxtowe (Anna Soubry) talked about.

[Nick Thomas-Symonds]

My hon. Friend highlights the really vague nature of the political declaration, which I will come back to in a moment.

[Several hon. Members rose—]

[Nick Thomas-Symonds]

They are queueing up! I will give way to the hon. Member for Ribble Valley (Mr Evans), but then I need to make some progress.

[Mr Nigel Evans (Ribble Valley) (Con)]

We have talked about trust and promises, which are vital. We promised to deliver on the outcome of the referendum. It was this House that gave the people the referendum in the first place. We passed our sovereignty to the people and promised that we would deliver on their verdict. That verdict was to leave the European Union. Does not the hon. Gentleman believe that if we failed to deliver on that verdict, it would be seen as one of the greatest betrayals of trust in this country?

[Nick Thomas-Symonds]

My constituents, like those of the hon. Gentleman, voted to leave the EU, and I voted to trigger article 50 in good faith and in line with their wishes. I sincerely hoped that there would by now be something significantly better before this House that we could all have supported and got around.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

rose—

[Nick Thomas-Symonds]

I am going to make some progress, but I will give way again in a moment.

I want to move on to the letter that has been sent by President Juncker and President Tusk, page 2 of which states:

“The European Council also said that, if the backstop were nevertheless to be triggered, it would only apply temporarily, unless and until it is superseded by a subsequent agreement”.

They again spoke about “best endeavours” and about the backstop being in place only for as long as “strictly necessary”, but we all know that that represents no difference at all to the position on which the Attorney General advised in December. Have there been any changes to the withdrawal agreement text? None. Changes to the possible interpretations of it? None. Changes to the reassurances available? None. What did the Attorney General himself say in his latest letter to the Prime Minister about the Council’s conclusions and their impact on the Northern Ireland protocol? He said that

“they do not alter the fundamental meaning of its provisions as I advised them to be on 13 November 2018.”

To coin a phrase, nothing has changed.

[Daniel Kawczynski]

rose—

[Simon Hoare (North Dorset) (Con)]

rose—

[Nick Thomas-Symonds]

I want to make some progress.

I made it clear in response to an intervention that my constituency of Torfaen voted to leave. I respect everyone who voted. In good faith, and in line with their wishes, I voted to trigger article 50 to start the process of our withdrawal. I wish there were a withdrawal agreement worthy of wide support across this House. I wish there were a political declaration that actually did point a way to a future that secured our economy, our jobs and our futures, and that it was not the meaningless text—the leap in the dark—that it actually is. Now, more than ever, we need to unite the country away from fractious debate and towards a shared vision of our future.

The Prime Minister says she wants to unite, but all she has done is divide. She failed to unilaterally guarantee the rights of EU citizens at the outset, which would have been the right thing to do, creating good will on both sides. Her red lines created more problems than they solved, and she has negotiated issues in an order and a way that made a backstop inevitable. The Prime Minister has had two years to reach out across the House for consensus, but she has failed to do so. Instead of speaking to others, she has stayed in her bunker. Now she only speaks at the concrete walls, unable to deliver the changes needed.

This country deserves so much better than this totally inadequate agreement. We hoped for more in the 916 days since the Prime Minister first stood on the steps of No. 10 with what have proved to be completely empty promises. I stand here today, nearly four years after I was first elected, knowing that we can and must do better at this key moment in our history. For that reason, the Prime Minister’s deal should be voted down by this House.

[Several hon. Members rose—]