[2nd Allotted Day]

Part of Immigration (Time Limit on Detention) – in the House of Commons at 3:26 pm on 5th December 2018.

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Photo of Grant Shapps Grant Shapps Conservative, Welwyn Hatfield 3:26 pm, 5th December 2018

Thank you, Mr Speaker. Broadly speaking I believe in international co-operation—whether the United Nations, NATO or, indeed, the European Union—because a rules-based world is a safer world. However, I also recognise that being a member of a club has advantages and disadvantages, because members must compromise over some sovereignty and pool some resources. While in Cabinet, I led a number of trade missions to south-east Asia, including Malaysia, Singapore and Taiwan, but it was in Hanoi that the compromise struck me most. Having negotiated over some communist paperwork preventing British beer being landed at the port, we then got down to the further 20 items on the agenda, and the only thing that I could say to the Vietnamese Deputy Prime Minister was, “These are all very interesting issues, and I’ll take them back to the European Trade Commissioner,” from whom some Members may not be surprised to hear we never heard again.

When it came to the 2016 referendum, I could see both sides of the argument, and it took me right up to the ballot box itself to decide that I would vote remain, which I did. My decision is not dissimilar to that of many other citizens in our country—certainly my Welwyn Hatfield constituents—who also voted along national lines. The argument could be said almost to reveal the fact that the division was 52:48—half and half—with lots of people seeing both sides. That has led to the idea that we should leave the EU to honour the result but that we should perhaps not leave too much lest we fail to represent the 48% who were for remain. I fear that this Government’s anxiety to do just that is, in the end, in danger of pleasing no one—certainly not our fishermen, who face another two years in an EU-wide catch zone, nor our colleagues in Northern Ireland, who fear separate treatment, nor those in other parts of the UK, who either see what the Northern Ireland exemption is going to bring and want it or fear that the differences will help to carve up the country.

We have therefore agreed a backstop designed to protect against the construction of a physical border on the island of Ireland that nobody wants and nobody says that they will build. However, that backstop has become the real deal breaker for this withdrawal agreement, and I will explain why. As MPs, we understand that there is a simple principle that no Parliament can bind its successors. Unlike other countries, we have never attempted to codify our constitution in a single written document that is later nigh on impossible to change, so not for us an unbreakable second amendment made in 1791 that now means guns kill 33,000 people a year in the United States. I would argue that our unwritten constitution has served us well in providing flexibility, which occurs all the time. There is one exception, which arises when we sign international treaties.

Treaties have a special status. These are laws that, when we pass them, we essentially agree we will never change without first coming to an international agreement to do so. They tend to be about human rights or chemical weapons, so the United Kingdom does not usually have a way in which it can walk away unilaterally, but we will leave a series of treaties made with the EU next March. Even then, it will only be because another treaty, the Lisbon treaty, gives us permission to do so through article 50.

That brings us to the legally binding withdrawal agreement, which is, in effect, a new treaty, complete with a backstop lacking a unilateral exit clause. “But don’t worry,” some say, “we will never fall into that backstop.” My question is what happens if we do? Our history suggests that the chances of our unilaterally walking away are about on a level with America changing its second amendment, so the backstop is really something that we will never unilaterally leave.

Some people say, “But we will use best endeavours on both sides, and we will make sure that we never end up in that backstop in the first place.” Yet, as every businessperson knows, we should never sign a contract if we do not know what the termination clause will be. I find the issue troubling, so I have been mugging up on “best endeavours” over quite a few mugs of coffee, and I can tell the House that the phrase has an official meaning:

“‘Best endeavours’
places upon a party the obligation to use all efforts necessary to fulfil a contract. It is a stricter obligation than the lesser ‘reasonable endeavours.’”

That may sound promising but, alas, no, because best endeavours is by no means an absolute obligation. The concept of reasonableness still applies.

For example, satisfying best endeavours would not necessarily require the EU to put itself in a detrimental position. To take a real-life example, if a construction firm were asked to complete an office block by Christmas but things did not go to plan during the contract, it could do what was reasonable—it could even put more people on site—but if it could not reach the conclusion of building the office block before Christmas, it may none the less be said to have used all best endeavours, even though the outcome was not what anyone had expected.

In other words, we could end up in this backstop for ever, and that would be that. Our country’s entire trading future would instead be decided by five people—two from the EU, two from this country and one individual whom we do not know and whom we have never met. That individual, who certainly is not democratically elected to this place, would make the final decision, so our country’s future would be determined by that individual.

I find it difficult to support legislation that effectively removes power from this House and from this country, so for the first time as a Member of Parliament I find myself at odds with my own Government. With no sign of a solution, and certainly not in the Attorney General’s legal advice that was finally released today, I am afraid that I am left contemplating my vote on the withdrawal agreement next Tuesday. I am currently minded to vote against it.