My Lords, it is extremely difficult, as the noble Lord, Lord Steel, said, not to sympathise with the Prime Minister in this incredibly difficult situation in an incredibly difficult negotiation. She is entitled to a fair hearing and the deal to dispassionate consideration. None the less, it would be fair to say that the reception the deal has received has been less than rapturous, with criticism not just from the Opposition but from within the Conservative Party from leavers on the one hand and remainers on the other. There have been Cabinet resignations as well, and it seems obvious that some in the Cabinet, although staying, are considering their position.
It was in 1997 that William Hague campaigned in the election on the slogan “In Europe but not run by Europe”. Jo Johnson, in his resignation statement, said that we now seem to be in the position where we will be out of Europe but run by Europe—and, as the noble Lord, Lord Steel, added, at considerable cost as well. Jo Johnson referred to the inability to have free trade agreements or to make competitive adjustments through regulation. If Brexit is to be like that, it will indeed be pointless.
I appreciate that many of the restrictions or provisions to which people such as Jo Johnson and his brother object are temporary. Personally, I would support the deal if it could be demonstrated that these restrictions were indeed temporary, but we seem to be in danger of drifting into the limbo of a never-ending transitional period. For that reason, one of the biggest concerns is the key point mentioned by my noble friends Lord Howard and Lord King, and the noble Lord, Lord Morrow: the exit mechanism from the two backstops. Indeed, the Irish backstop is extremely significant, with 68 pages in Annex 5 listing different regulations that will apply in Northern Ireland.
The Government originally asked for, but failed to get, the right to leave the backstop after a period of time. Now, the documents refer to assurances that it will be temporary. To some people, it seems as though the EU has a veto on when this period will end. If the two sides cannot agree that it is no longer necessary to meet the objectives of the protocol, the arbitration panel will come into place. However, in matters of interpretation of EU law, they have to refer to the European Court of Justice. Martin Howe QC has said that this will mean that the arbitration panel is merely a postbox for the ECJ. I know that the Minister will say that it does not matter—that it will not come into effect if a long-term trade agreement is reached before December 2020, but it will not. It is highly unlikely that it will, as the former President of the Council of Ministers, Monsieur Van Rompuy, said on the “Today” programme just two days ago.
Does that really matter? I think it matters profoundly. The protocol means that the EU has no incentive to offer a trade agreement better than that in the protocol. The protocol is based on the association agreements between the EU and Ukraine, Georgia and Moldova, but even Moldova has a break clause in its agreement, unlike us. Is this a matter of concern to only a few swivel-eyed Eurosceptics or is it a matter of real concern and a real point of debate? This is what Carl Baudenbacher, a very distinguished judge at the EFTA Court and for a considerable time the president of the EFTA Court, said:
“It is absolutely unbelievable that a country like the UK, which was the first country to accept independent courts, would subject itself to this”.
It seems to me that we need to alter the arbitration procedures for there to be any chance of this deal passing the House of Commons.