Brexit: Withdrawal Agreement and Political Declaration - Motion to Take Note (1st Day)

– in the House of Lords at 11:08 am on 5th December 2018.

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Moved by Baroness Evans of Bowes Park

That this House, for the purposes of section 13(1)(c) of the European Union (Withdrawal) Act 2018, takes note of the negotiated withdrawal agreement laid before the House on Monday 26 November 2018 with the title ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’ and the framework for the future relationship laid before the House on Monday 26 November 2018 with the title ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’.

Relevant document: 24th Report from the European Union Committee

Photo of Baroness Evans of Bowes Park Baroness Evans of Bowes Park Leader of the House of Lords and Lord Privy Seal

My Lords, the Motion before the House today gives us the formal opportunity to consider the withdrawal agreement and political declaration negotiated with the European Union. On 23 June 2016, the people of the United Kingdom voted to leave the European Union. Before Parliament is a deal that delivers on that vote. This is a good deal and, as European leaders have made clear, the only one on offer. In supporting it, we will be protecting jobs, ending the jurisdiction of the European Court of Justice in the UK and securing the ability to strike free trade deals around the world. It maintains a strong and close relationship with our European allies, while allowing us to forge new partnerships around the world.

I do not need to tell noble Lords that negotiating with 27 other countries is challenging and demands compromise. This is the case in any complex negotiation, as many in this House who have been involved in such matters will know. But we have succeeded in agreeing a deal, and Parliament has the opportunity to provide certainty to the country and allow us to move forward together.

The only certainty, if this deal is rejected in the other place, is uncertainty. That is not good for business, our economy, our political system and, most importantly, our citizens. It is not the right path to follow. Before us we have three days of debate, with contributions from over 180 noble Lords. With a crucial national decision to be made, it is right that this House devotes its time and expertise to the choice facing the United Kingdom. While it is a privilege for me to open this debate, I am grateful that the task of responding will fall to my noble friend Lord Callanan, who I know will do so with his usual panache.

Before I address the details of the documents, I will reflect briefly on this House’s role up to this point. Since the referendum and during the legislative programme that has followed, there has been regular speculation that this House would ignore the conventions governing the exercise of its powers and seek to block or frustrate the express will of the public. I speak as Leader of the whole House when I say that that is not the approach that has been taken. Noble Lords on all Benches have worked hard on the public’s behalf, debating key issues and subjecting the Government’s legislative programme—both primary and secondary—to robust scrutiny.

Despite the passionate debates we have had, this House has continued in its final decisions to recognise the primacy of the House of Commons. The conventions which spring from that recognition underpin the legitimacy of everything we do, and I believe the House has maintained them.

Since the end of June 2016, we have spent 414 hours and 47 minutes debating issues directly connected to Brexit. Six Acts have been passed to ensure the UK has a functioning statute book after exit day. These Acts put in place immediate post-exit frameworks in areas such as nuclear safeguards, sanctions, customs, and vehicle and trailer registration. Five Bills are currently before Parliament and more than 220 statutory instruments relating to Brexit have been laid.

The Select Committees of this House have been very busy. Sixty-eight reports have been published—including one produced to inform this debate—largely by your Lordship’s European Union Committee and its six sub-committees but also by the Constitution Committee, the Delegated Powers Committee and the Joint Committee on Human Rights. I thank all involved for their dedicated work.

During the passage of the European Union (Withdrawal) Act, we achieved cross-House consensus on a sensible way to consider proposed negative statutory instruments under that Act, building on our established structures and leading to two new sub-committees of the Secondary Legislation Scrutiny Committee. That system has been up and running for three months and is working well.

The Motion before the House, and that which is being considered in the other place, is another legacy of our scrutiny of the European Union (Withdrawal) Act. The amendment that was ultimately carried recognised from the outset that a vote on the final agreement was for the elected House alone, but it is right that our views should be put on record, as they will be, before the House of Commons votes next Tuesday. The noble Baroness, Lady Smith of Basildon, has tabled a separate resolution which will be debated alongside the Government’s Motion. My noble friend Lord Callanan will respond to it in his winding-up speech.

The process which has resulted in the withdrawal agreement and the political declaration before us today began with the passing, unamended, through both Houses of the European Union (Notification of Withdrawal) Act. That short but crucial piece of legislation gave the Prime Minister the authority to set the clock ticking on the UK’s departure from the EU.

Noble Lords will be familiar with Article 50 on the Treaty of the Functioning of the European Union, and it is worth remembering that at its core it set out that any member state leaving shall negotiate and conclude an agreement,

“setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.

It is those two things we have been negotiating since the end of March last year: the terms of our withdrawal, and the framework for our future relationship once we are no longer a member state.

The documents we are considering are the result of thousands of hours of negotiations between the UK and the EU, and represent a conclusion that is in the national interest. I would like to take this opportunity to place on record my admiration for the Prime Minister, who has worked tirelessly to deliver this deal. Credit must also go to the hard work of both sets of negotiators. The first document, as laid in Parliament on 26 November, is the withdrawal agreement—the agreed draft treaty setting out the terms of our separation from the EU under the Article 50 process. It provides for, among other things, a deal on citizens’ rights, a time-limited implementation period, arrangements for the financial settlement and arrangements for the unique circumstances in Northern Ireland. It is to be considered and voted on as a package in the other place, with the Political Declaration Setting out the framework for the future relationship between the European Union and the United Kingdom. This document was also laid in both Houses on 26 November and outlines the scope and terms for our country’s future relationship with the EU. Taken together, these documents represent the evolution in both sides’ positions and demonstrate our joint commitment to a future partnership that reflects the depth of our shared history and values.

This deal secures the rights of EU citizens living and working in the UK, who make such a valuable contribution to our society, economy and public services. It ensures there will be an end to the billions of pounds we send to Brussels every year, allowing more investment in our domestic priorities. We have negotiated a fair settlement of our financial obligations and, as my right honourable friend the Prime Minister said yesterday, this is less than half of what some people originally expected and demanded. It means we will leave the common agricultural and common fisheries policies and we will once again be in control of our immigration policy.

This deal also provides the route to a new economic partnership with the EU that goes well beyond the baseline WTO commitments on services, trade and investment. We will have an unprecedented economic relationship that no other major economy has, and it allows us to secure new trade agreements with partners around the world, but its scope goes far wider than trade. From foreign policy to security and defence, law enforcement to criminal justice, we have negotiated a security partnership to keep our citizens safe and to promote global security, prosperity and effective multilateralism. In doing so, we will be negotiating the broadest and most comprehensive security relationship in the EU’s history.

There is, of course, further work to do to turn the political declaration into a legally binding treaty during the next phase of negotiations. However, the declaration sets out a clear vision for a positive future relationship. Taken together, the withdrawal agreement and the political declaration form a deal that delivers on the result of the referendum for the whole of the UK as well as the Crown dependencies and the overseas territories. Critically, it safeguards the constitutional and economic integrity of the UK and meets our commitments to Northern Ireland; and as powers are returned to the UK, in areas of devolved competence, they will flow directly to Belfast, Cardiff and Edinburgh.

Noble Lords have raised concerns about the inclusion of the backstop in this deal. The original proposal from the EU would have split the UK into two customs territories— a totally unacceptable proposal that the Prime Minister would never agree to. But the backstop secured in this deal gives the whole UK tariff-free access to the EU market without free movement of people, without any financial contribution, without having to follow most of the level-playing-field rules and without allowing the EU access to our waters. As the Prime Minister explained yesterday, the backstop is not a trick to trap us in the EU by the back door. If it were ever to be used, it would give us the benefits of access to the EU’s market without many of its obligations. This is not something the EU wants to happen, let alone to persist for a long time.

Our unbreakable commitment to honouring the Belfast agreement meant that the only way that we could guarantee no border on the island of Ireland at the end of the implementation period if the future relationship was not in place was to agree a backstop as a last-resort insurance policy, and we have secured seven separate commitments in the withdrawal agreement and the political declaration to ensure that the UK cannot be stuck in it indefinitely. Put simply, with no backstop there would be no deal, as the EU and the Irish Government have made clear.

Over the next three days we will hear many differing views and voices, as we have since 23 June 2016. This House has played an important role through the process of our exit from the EU, and this debate does not represent the end of that work. There will be legislation to implement this deal, and then a future relationship deal to be scrutinised, shaped and signed. I am sure that noble Lords will have welcomed the commitment by my right honourable friend the Prime Minister yesterday, when she undertook to ensure,

“a greater and more formal role for Parliament”,—[Official Report, Commons, 4/12/18; col. 758.] in the next stage of negotiations.

I know this House will approach the debate and all those to come with vigour and challenge. That is its job. The job of this Government has been to negotiate a deal that will allow the UK to leave the European Union on 29 March 2019 and forge a new path in the world. Many suggested that that was an impossible task, but they were wrong—we have a deal. There is no alternative on the table and it is now less than four months until we leave the EU. This agreement provides for an orderly exit, safeguarding our economic prosperity and the bright future of our country.

Support for this deal should not be limited to the Government Benches, as the Opposition’s manifesto clearly set out that Labour too “accepts the referendum result”. The referendum vote gave people a voice. Those who felt that they had been ignored made their decision and they placed their confidence in Parliament to deliver on that result. We must honour that trust.

On borders, laws and money, this deal delivers for the British people, and I urge colleagues across the House to support it. I look forward to the debate which will follow, and I commend the withdrawal agreement and the future relationship framework to the House. I beg to move.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office) 11:21 am, 5th December 2018

My Lords, I am grateful to the noble Baroness the Leader of the House for opening a very important debate, and to the usual channels for facilitating what is effectively four days of debate across three days to ensure we have the opportunity to conclude our discussions prior to the vote in the other place.

Since the result of the referendum, as the noble Baroness referenced, this House has been constructive in examining the detail and implications of the UK’s departure from the EU. The clearest evidence of this is the many Select Committee reports on a range of subjects, such as trade and financial services, judicial and security co-operation, and Northern Ireland, which have brought enormous clarity to complex matters. When the Government were forced by the High Court to secure Parliament’s approval to trigger Article 50, your Lordships’ House passed just two amendments—on the position of EU nationals and the need for parliamentary debate—with a vote for MPs on the eventual deal. Although the Government opposed the amendments, they conceded the principle on both.

Our constructive approach has also been evident in later legislation. On the withdrawal Bill, some 160 hours of scrutiny led your Lordships’ House to pass an unprecedented 15 amendments for consideration by MPs. Despite the over-the-top protestations from some, this was clearly useful work. Our EU agencies amendment was accepted in full and others, including those on Northern Ireland and the meaningful vote, were accepted with some changes.

Your Lordships’ House, working across party lines to improve the legislation, secured almost 200 concessions, including crucial restrictions on delegated powers. We considered that there should be parliamentary oversight of the final arrangements, rather than our future relationship with the EU being approved with the stroke of a ministerial pen. This House agreed that we should debate the Prime Minister’s Brexit deal, but that the meaningful vote should be for the elected House. Any vote we have is an expression of our opinion as a second Chamber, and our debate over the coming days is in that context. It provides an opportunity for your Lordships’ House to continue to be constructive, analytical and forensic in consideration of the withdrawal agreement and the political declaration.

Following discussions and consultations, we have tabled a Motion in my name to provide an opportunity for your Lordships’ House to express its opinion on the outcome of the Prime Minister’s negotiations. I will speak to it now, but it will not be formally moved until the conclusion of our debate on Monday. I have just been informed that an amendment to my Motion has been tabled, although I have not had sight of it yet. I do not know what it says, but I hope that might become clearer in the next few days.

The aim of my amendment is to frame the next few days around three key issues that are at stake. First, as noted, it is for the elected House of Commons to determine this matter. When we debated the withdrawal Bill in this House, my noble friend Lord Monks tabled a successful amendment saying that the Prime Minister should obtain a mandate from Parliament for her deliberations with the EU. At that time the Government were adamant that Mrs May could not be constrained by Parliament, yet had she sought a parliamentary mandate then, even just for the basic principles, she might not be facing such an uphill and perhaps even impossible struggle. Yet as we heard from her last night, she has again conceded that principle. While it is exceptional, the Government are—probably as I speak—releasing their own legal advice, having been forced to do so by MPs. The House of Commons faces its most important Division for 75 years, so how could it have been against the national interest, as the Government then claimed, to provide MPs with vital legal information? I am pleased that, following last night’s vote, the Government have had to accept that they were wrong, but the Prime Minister just made her job harder.

Secondly, the Motion is clear that the option—or indeed the threat—of a no-deal exit is emphatically rejected. While some may fondly imagine that the only consequence of no deal is that we step back in time and pick up where we left off 45 years ago, the reality is so very different. The world outside has not been static, just waiting for us. To crash out of the EU without arrangements in place for co-operation on trade, agriculture and fisheries, crime and security, consumer and employment protections, energy and the environment would be grossly reckless and irresponsible. It would leave the country in the curious position of being outside the EU but having essentially to accept free movement, due to a lack of alternative immigration arrangements. It would leave our UK citizens in the EU without security in employment or in retirement. Initially, planes would be grounded and, regardless of the number of lorry parking spaces made available on our motorways, major ports would experience tailbacks and costly delays, with huge implications for the nation’s food security and exports. Our already overstretched police forces would no longer have access to EU databases but would be left to rely on patchy, outdated and cumbersome procedures for exchanging vital information on cross-border crime. The lack of certainty for businesses would have a hugely detrimental effect on our economy and investment. There are no circumstances in which a no-deal scenario could be of any benefit to the UK.

Thirdly, the Motion regrets that the Prime Minister’s negotiated settlement is inadequate. The Government initially argued against a transition or implementation period, claiming they had everything in place: it would all be done by March 2019. This deal proves how empty a boast that was. The Government are now forced to accept that such a breathing space is essential as they have not been able to reach agreement on multiple issues. The declaration outlines what both sides hope can be achieved, but it offers zero certainty. Should the deal we are debating be accepted by the other place, the Government would then bring forward what they call an implementation Bill, but nobody has any idea what it will be implementing. Our future economic prosperity, our security and our place in the world are all weakened by this agreement.

Since the publication of the political declaration, it has become clear that the envisaged trade and security relationship is below par. Even if the Prime Minister had got everything on her Chequers shopping list—and we should be clear that she is nowhere near—the result would be slower economic growth. There is no provision for a permanent UK-EU customs union, nor for continued participation in the European arrest warrant. While the EU has stated that the UK can enjoy an unprecedented level of third-country security co-operation, we have no idea whether we will have access to databases such as the second-generation Schengen Information System. On Northern Ireland, the Prime Minister produced a backstop that literally nobody is happy with—not her Back Benchers, not the DUP and certainly not the Labour Party.

What does the Prime Minister’s deal offer us? It is a wish list, with decisions to be made later. In the words of the latest Brexit Secretary,

“we have agreed to strike an ambitious new flexible and scalable relationship that allows us to combine resources worldwide for maximum impact”.

If only there was some existing international organisation that allowed the UK to maximise its contribution to global affairs. The deal before us represents a blind Brexit, with no certainty or clarity for the future. It does not deserve our support.

When the Prime Minister claims it is the best deal, what she means is that it is the best deal she has been able to negotiate. Those red lines Mrs May set at Lancaster House were never a great starting point for a strategy. Throughout, she has sought to appease one or other of the rival factions in her party. In a Statement last week, the Lord Privy Seal described Brexit as,

“building a brighter future of opportunity and prosperity for all our people”.—[Official Report, 26/11/18; col. 503.]

On what basis can that claim be made? What is the evidence? Where is the detail?

The Government’s economic analysis was modelled on a White Paper produced post-Chequers. That is not even government policy any more. We have been told that countries are queueing up to sign trade deals with us. However, the US President clearly thinks otherwise. The Prime Minister’s most positive interaction at the G20 summit was meeting her Japanese counterpart who, echoing our Motion today, pleaded with Mrs May to rule out no deal. The Chancellor of the Exchequer admitted that the deal leaves us worse off, saying:

“There will be a cost to leaving the European Union, because there will impediments to our trade”.

The options being presented by the Prime Minister are her deal—which would leave us worse off—or a catastrophic no deal. That is a Hobson’s choice, and not one that any responsible Government should ever seek to force their Parliament to take.

Let us be very clear: the Government have mismanaged this entire process. Every time there has been a fork in the road with decisions to be made on the direction ahead, the Prime Minister has taken the wrong turn. No responsible Government would ever trigger Article 50 without having some kind of blueprint for negotiations and ensuring buy-in from Parliament. No responsible Government would ever alienate their closest allies before talks had even begun by refusing to protect the rights of their citizens who have made this country their home. Surely, no responsible Government should ever talk up the chance of falling off a cliff-edge, forcing businesses to implement contingency plans that result in the loss of UK jobs.

It is little wonder the Prime Minister is living life on the edge, taking each week—or rather each day—as it comes, or that our country is so divided. That division is not the only tragedy of Brexit. Imagine if that energy, intellect, enthusiasm and money had been channelled into some of the great issues of our time: eradicating homelessness and poverty, tackling climate change, preventing disease and resolving conflict. For the first time since the Second World War, we have generations of young people without the hope, optimism or confidence in the future that their parents and grandparents had. Whatever the eventual outcome of the wider debate on Brexit, there is an obligation on all of us to address that and prove that the current state of our political life is not the norm. Parliament and politics should and must be a force for good.

The public were promised outcomes that were never realistic. Over the next few days, your Lordships’ House will do what it does best: scrutinising the agreements and highlighting the many issues and inconsistences within them. On Monday, before the Commons takes its own binding decision, I will ask your Lordships’ House to vote on the Motion standing in my name. There are just three points: first, it is for MPs to make the decision; secondly, no deal can never be an option; thirdly, even if the Prime Minister thinks it is the best deal she can get, it is inadequate. We hope our debate, the evidence we have already provided through our Select Committees and the work of our EU committee will be useful to MPs as they deliberate. As part of being helpful to the other place, we hope your Lordships’ House will want to express the view that the Prime Minister is wrong to impose this as a choice between her deal or no deal.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, before the noble Baroness sits down, I apologise that I was not able to give her more notice of the amendment I have put down to her Motion. For reasons I shall give when I speak, I wholeheartedly go along with the first two legs of her Motion, but I cannot agree with the condemnation of the draft agreement in the last part.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office)

I am sorry that the noble Lord was not able to speak to me before. However, the point I am making does not differ from his, and I stand by it: the deal offered by the Prime Minister is inadequate.

Photo of Lord Newby Lord Newby Liberal Democrat Leader in the House of Lords 11:35 am, 5th December 2018

My Lords, when your Lordships’ House debated the withdrawal Bill, we agreed that the substantive, meaningful vote at the end of the Brexit negotiations would lie exclusively with the Commons. This is reflected in the Government’s Motion today. However, I think your Lordships would have felt cheated had we not had the opportunity to express a view on the two Brexit options facing the country: the Government’s deal and leaving the EU without a deal. I am therefore grateful to the noble Baroness, Lady Smith, for tabling a Motion on which we have been consulted and with which we agree.

The country finds itself in the most dangerous position it has faced in 80 years. It continues to have great underlying strengths, but it is faced with serious divisions at home—between rich and poor, and north and south—and increasing tensions internationally, whether from terrorism, an opportunistic and expansionist Russia or an eccentric ally in the United States. In these circumstances, the Government have embarked on a policy purely to resolve differences in the Conservative Party: a mission that has spectacularly failed, incidentally. The Prime Minister knew—she said so at the time—that it would make us poorer, less secure and less influential.

Your Lordships’ House contains many eminent historians. None of them has yet been able to point to an example of a democracy ever knowingly embarking on such a policy, but that is where Britain is today. On the economics, the only real debate now is about exactly how much poorer we will become. The Government’s own assessment, published last week, gives a bewildering range of scenarios, but every single outcome is preceded by a minus sign. Some argue that this is because the Treasury is useless or biased in its forecasting. But, as the table on page 81 of the government document demonstrates, of the 28 forecasts of the impact of Brexit produced in the last three years, only one—by the highly partisan Economists for Free Trade group—shows the economy doing better if we leave the EU.

On security, obviously we would not remain a member of a raft of EU programmes and co-ordinating bodies. For example, all talk of remaining in the crucial European arrest warrant has now vanished. Similarly, our influence on the world stage will inevitably be diminished, as the Prime Minister’s rather sad and lonely performance in Buenos Aires amply demonstrated.

Of the two Brexit options before us, leaving without a deal is so damaging that in my view there has never been any chance of the Commons supporting it. Yesterday’s vote on the Grieve amendment merely reinforces that view. The other option, the Prime Minister’s deal, consists of two parts: the withdrawal agreement, which is probably as good as was available given the Government’s red lines, and the political declaration on our future relationship. The document produced by the Government to explain this latter agreement says the political declaration,

“will be turned into legal text after the UK leaves the EU”.

This is a deeply misleading statement. The declaration contains virtually no agreements that we are remotely near being able to turn into legal text. It is an agenda for future discussions, with all difficult issues again kicked down the road. In the time available, I will mention only two: people and trade.

On people, the Government are clear only on wanting to restrict EU migration, but on this they are fighting the last war. Far from there being hordes of Europeans now wanting to come to the UK, figures released last week show a net exodus of EU citizens in the last quarter. This is not surprising. For example, I know of a Frenchwoman who has lived in North Yorkshire for 32 years and is returning to France in the spring with her English husband because she cannot stand the level of abuse the Brexit vote has unleashed. This example is commonplace. Why, then, would anybody from the EU want to come to live in this environment?

The Government cannot even decide what their immigration strategy should be. The Prime Minister wants to limit EU migrants to those earning £30,000 a year or more—a move that would have severe negative effects on the agricultural, hospitality and care sectors. No wonder it is opposed by half her Cabinet. To quote from the Government’s document, for those EU citizens already in the UK, the Government can promise only that they can,

“live their lives broadly as now”.

What does “broadly” mean? It is hardly likely to make waverers decide to stay here.

On trade, the Chequers agreement promised frictionless trade by having a wholly impractical so-called facilitated customs arrangement. This has been comprehensively rejected by the EU. In its place, we do indeed have in the political declaration an agreement not to have tariffs; but as for frictionless trade, the agreement states that, depending on the extent to which the UK follows EU rules, there is,

“a spectrum of different outcomes for administrative processes as well as checks and controls”.

If we diverge on rules and standards, as the Government intend, we will have customs controls. Heaven knows how the Government think that is compatible with an open border in Northern Ireland. However, it does perhaps explain why some fear that the Northern Ireland backstop might become permanent.

The vagueness of the political declaration, its failure to incorporate the UK wish list in the Chequers agreement and its confirmation of our weakened economic and security status make it hardly surprising that it has been so widely condemned in the Commons, or that the Government are set to lose their meaningful vote. So when the deal has been voted down, what will happen next? There are only three options.

The Government could attempt to renegotiate the deal, but even if the EU was ready to do so, it is extremely unclear what alternative would stand a better chance of Commons success. Whether it is Norway-plus, Canada-plus-plus or Ukraine plus-plus-plus, the same inexorable trade-off has to be made. You can have independence and a hard border in Ireland, or you can have a frictionless border and the requirement to follow EU rules, laws and subscription fees. I find it particularly odd that so many people now seem to want to follow the example of Norway—a country that supinely follows EU rules, pays as much into the EU per head as we do and, in reality, has to accept all EU court rulings. It is a sign of how desperate some of those advocating Brexit have become that this is the best they can come up with.

The second option is to have a general election, but given that this will be fought by three Conservative parties and at least two Labour parties, I cannot see how it could possibly bring any clarity to the position.

The third option, of course, is to ask the people to decide what they want. Such an option now has clear majority support in the country, and the polls also show a consistently widening majority in favour of remaining in the EU. Those who argue against such a referendum on the grounds that it is undemocratic are guilty of a perversion of language and logic, as is the Prime Minister when she claims that the deal she has negotiated will bring the country back together again. We do indeed need to implement policies to heal the divisions in society, but our ability to do so if we become poorer, less secure and less influential will be much reduced. That is why I urge Members of your Lordships’ House to support the Motion in the name of the noble Baroness, Lady Smith, and urge the Commons to ask the people whether this is the future they really want.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers 11:44 am, 5th December 2018

My Lords, for me as a self-confessed remainer, it has felt from time to time as if we are trapped in a maze from which there is no way out. I did not want to enter the maze at all. I did not believe the declarations by some of those who were selling the idea of leaving the EU to the public. Theirs was a false prospectus, as the noble Lord, Lord Sugar, pointed out in a memorable contribution to our debate on the people’s vote on 25 October. It seemed to me that despite the EU’s obvious shortcomings, we would almost certainly lose more than we would gain by leaving it, but I was willing to respect the result of the referendum, and that has been my position ever since.

Yet from the earliest months of the negotiation it was clear to me that it was an unequal struggle. It did not take the EU very long to get its act together and work out what it needed to achieve on its side if it was to hold the 27 together. Our side was beset by disagreements about what we wanted and the drawing of red lines before our case had been properly thought through. A prime example was our position that we would have nothing whatever to do with the jurisdiction of the ECJ—the CJEU as it is now—in any circumstances, a misguided and constant obstacle to progress. It was impossible to hold on to—as the agreement and the Attorney-General’s commentary on the legal position now show. To take but one example, the ruling by the CJEU on an issue referred to it by the arbitration panel is to be binding on the arbitration panel, and this means that it will be binding on us. For too long it seemed that such an arrangement would have been totally unacceptable, but it is obvious, given the assumption that the issue will always be one of EU law not domestic law, that this had to be so. There are other examples. We were far too slow to accept the inevitable.

Now we have a deal which we are told is the best that can be achieved. That is what the Prime Minister, guided by those who were conducting the negotiations on her behalf, is telling us. So too are Mr Tusk and Mr Barnier. Then we are told by so many on our side of the channel, who seem best placed to say so, that it is a bad deal and unacceptable. They seem to have a point. There is the backstop, of which we have heard so much, and its implications for Scotland, among other things, if it is invoked. We now have advice from the Attorney-General that there is no prospect of our being able to withdraw from the backstop unilaterally. Then there is the fact that so much will be decided for us during the implementation period by institutions of the EU of which we will no longer be a member and on which we will no longer be represented, and the contributions, which have meant so much, by our European Union Committee and its sub-committees will no longer be able to be made, and so on.

One thing seems to be certain in this fast-moving situation. As the law stands, we will be leaving the EU on 29 March, so we have to find the best way out if we can. What is it to be, I ask myself. I sympathise with those members of the public, many in the business community, who are fed up with the process, want to move on and want certainty. As one of our Cross-Benchers, who unfortunately cannot be in her place, said to me in a note attached to her Christmas card, “People I talk to have given up on the detail. They just want a deal to happen and to move on. Trying to discuss the complications brings a level of irritation from all sorts”. In other words, people recognise that there is a price to be paid because the deal has not a few things wrong with it, but they are willing to pay that price and move on.

There are three ways out of the maze that I find myself in, other than accepting the deal: no deal; to seek to renegotiate; or to go back to the people. As to no deal, it really is the cliff edge. If leaving the EU with this deal will make us all poorer, to leave it with no deal at all is far worse. Business leaders tell us that it is the worst of all worlds. So does the Governor of the Bank of England. The consequences for our security and for judicial co-operation in criminal matters would be very serious, and time to do anything about it is fast running out. I could go on, but the noble Baroness, Lady Smith, made all these points for me. For me, it is simply not an option.

Next, to ask the Prime Minister to renegotiate, in the expectation that any significant changes can be achieved by that method, seems to me to be barking in the wind. It will prolong uncertainty, and changes of a fundamental nature in the backstop arrangements seem remote. It is far from clear how much of the political declaration, on which so much depends as we move to the implementation period, would survive if we were to go back to the negotiating table and try to start again. That may have to be thought through again. All in all, this option seems highly unlikely to produce enough by any further agreement to satisfy those who argue for this course. The arguments that whatever is got out of it is still a bad deal will simply not go away.

Then there is the option of taking it back to the people. Of course, if a second referendum were to reverse the vote, it would open the door to a declaration by Parliament not to leave at all: to no Brexit. For me, as a remainer, this of course has some attraction, but I think we would be deluding ourselves if we thought this would settle the matter for ever. The last campaign was unpleasant enough. Project Fear and all the other slogans would raise their ugly heads again. I do not think the most reverend Primate, the Archbishop of York, was far wrong when he said on Monday that a second referendum would undermine trust in democracy, that civil unrest would follow and all that that means. If the result were to go the remainers’ way, perhaps by a similar margin to last time, there would be much resentment among the people who voted the other way. They would feel they had been cheated, and one could understand why. It seems to me that there are real dangers here, however attractive this option might seem.

So where am I? It seems to me that the best way out of the maze is to accept this deal for what it is. Part of me regrets this, because there are aspects of it which I do not like. However, I cannot bring myself to describe the consequences as “grave”, as the noble Baroness’s Motion invites us to do. Let us have a sense of perspective. It is, after all, a deal about the withdrawal and implementation period. There is much more work still to be done after that. It is not the end of the story. I believe we should move on to the next stage and concentrate our efforts now on establishing a sound framework for our future relationship with the EU. That is what really matters in the long run.

Let us also face the fact that the decision to leave was always going to leave us with less than we wanted. We were always going to have to compromise. It is an imperfect deal, but it is all we have, so I am prepared to swallow my misgivings and get on with it.

Photo of The Archbishop of Canterbury The Archbishop of Canterbury Bishop 11:53 am, 5th December 2018

My Lords, of the choice of psalms that form part of our daily prayers in the Lords, we have Psalm 46, which we heard today,

“The nations rage, the kingdoms totter”,

and Psalm 121, which we will doubtless hear tomorrow,

“I lift up my eyes to the hills …

My help comes from the Lord, who made heaven and earth”.

Eyes need to be lifted now more than ever, and that is a gift of this House, perhaps more than others. It is a skill and a calling here.

The withdrawal agreement and the political declaration are essentially political more than economic; the debate has moved on from the referendum campaign, which was the other way round. Another change, as we know particularly since yesterday evening, is that the great decisions are now left firmly in the hands of Parliament—as is right.

The decision on this agreement and consequent legislation is thus about not just the immediate politics but national policy and identity, and our future place in the world and how we develop it. It is long term: it is for the child born yesterday and not just for parliamentarians today. The decision must be made in the interests of those who will be here for the long term. In the midst of political struggle, that is a very hard thing to do, but it is the calling of Parliament and one to which it has risen in equal crises in the past.

In what way will we be able to be the kind of nation we want to be? First, it is obvious that no agreement is ever final. Many years ago, Palmerston said:

“We have no eternal allies”,—[Official Report, Commons, 1/3/1848; col. 122.]

only eternal interests. So no agreement is final, least of all the withdrawal agreement and the political declaration, both of which I have read in their entirety. They make it clear that so much is left open in deciding our future and our relationships with the EU 27 and around the world. That may be an advantage or a disadvantage.

What is obvious is that we are choosing a new path. Although I am a remainer, like the noble and learned Lord, Lord Hope, I fully accept the decision of the referendum, which must now be implemented; the shape of which is in the hands of Parliament, and particularly of the other place. With that responsibility there is a moral agency and a moral choice, and it is that that should guide our votes. It must reflect a genuinely hopeful vision for our nation and its place, because there is a vision of hope and global influence to be grasped by this country, with proper leadership.

Secondly, whichever way we go, there is a requirement for national reconciliation; for restating what the noble Lord, Lord Sacks, calls the core values of civilised discourse, and ensuring that they are lived out. The negative impact of the previous referendum is why I see another one as a possible but not immediately preferable choice, and only if Parliament has failed in its responsibilities. Reconciliation is an area for civil society and faith groups, but it is also largely the responsibility of any Government. It is a process that takes generations, and thus will affect not only the current Government but subsequent ones. What specific commitment will the Leader of the House—and for that matter the noble Baroness, Lady Smith, and other leaders of groups and parties—make to future Governments to work purposefully for reconciliation in this House, across politics and across the nation? We have heard much about its need but nothing about its methods.

Thirdly, economically, we know that there are many and diverse views about the outcome of this agreement, of no agreement or of other possibilities. We know that no forecast is certain—that has become very clear over the last two and a half years. The risk we face now is not a decision to leave without an agreement but an accidental leaving without an agreement. We may drift into something that no one chooses as their ideal. If that happens, and even under some of the other options, there is a significant danger of adverse economic effect, with a fall in government revenue, a rise in unemployment and greater poverty. Some will argue that that will be only temporary, but we need to remember that for those in poverty, temporary is an eternity. It must be the clear policy of this and all future Governments, after so many years of austerity, borne most often by the poorest, that the burden of the transition to a post-EU economy—if there is a burden—must be carried by those with the broadest shoulders, the wealthiest, and not by further cuts, whether to local services, social care, benefits, the Armed Forces, climate change budgets, education or other areas that have lost so much in recent years.

This is not a simply a debate—and, in the other place, a decision—on the agreement and the declaration before us. This is genuinely a moment of national re-imagination; exciting and hope-filled, but also deeply dangerous in some ways. We have had such before; we need not despair.

Another verse from the Bible, from Proverbs in the King James version, says:

“Where there is no vision, the people perish”.

The withdrawal agreement and political declaration are mainly about process, not vision and outcome. Whichever way we go, there must be a vision for justice and fairness, with economic, political, and visionary moral foundations secure enough to bear any storms or shocks that may come. The process must then lay the foundations to fulfil such a vision. That should be the test for our voting.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 12:00 pm, 5th December 2018

My Lords, it is a privilege to follow the most reverend Primate the Archbishop of Canterbury. I feel the responsibility of that and appreciate what he said.

The Prime Minister has been criticised for the so-called red lines. I think these were very reasonable attempts to focus on what the referendum had done and to try to follow through on the intention of those who had voted in the majority. Therefore, as far as I am concerned the Prime Minister is seeking to implement the recommendation—the advice—she got in the referendum. It is against that background that one has to evaluate what has happened. The advisory time is seven minutes, and I am determined to keep to that. Therefore, I shall be selective in what I talk about, because I could easily go on for much longer.

When I was appointed Lord Chancellor in 1987, one of my responsibilities was the nomination of judges in Northern Ireland and the political supervision of the court system there. Shortly before my appointment, a Lord Justice had been blown up after crossing the great boundary between Northern Ireland and Ireland; the Lord Chief Justice had been shot at; and a Lord Justice’s wife had come home from shopping to find a note on the kitchen table saying, “Get out quickly, because the place is going to be blown up”. She did get out quickly and her home was blown up. So the dangers facing the judiciary of Northern Ireland then were very severe, and it is extraordinary how they were able to live in those surroundings.

The peace and security of Northern Ireland are very much an issue in my life, and I will do everything I possibly can to defend them. The Belfast agreement, and all that followed it, is a wonderful step forward, and the situation in Northern Ireland is now, happily, very different from when I took office. But it is not perfect, and we need to be careful to secure what has happened.

The peace and prosperity of Northern Ireland is not a temporary matter. I would like it to last as long as possible. The steps taken to secure it should therefore also be permanent. Others in this House who had political responsibilities in Northern Ireland agree that the only way to secure a soft border or eliminate a hard border is to apply pretty similar customs rules on both sides of the border. That is the purpose of the backstop.

The backstop will be permanent if it is necessary for it to be permanent. I can see no way out of that if you like the peace and prosperity of Northern Ireland—as I said, I certainly do. The necessity for the backstop to be permanent is obvious, unless and until the conditions are satisfied in which it can be changed. One of those conditions is the agreement of a new customs arrangement between the United Kingdom and the EU. That is one objective of the agreement that has been reached.

The withdrawal agreement is a binding legal agreement. The political proposal is not binding in that sense, but it is the agenda for an agreement. The agreement will be enforced by the law of the United Kingdom, as well as by the law of the EU. My view of these documents—and I was glad that Mr Trump was able to give a view on them, having read the whole lot very quickly—is that they are well written but complicated. As legal documents go, they are readable for those who have not been burdened by being lawyers. The agreement requires that the treaty that follows on the political agenda will be brought into force with the best endeavours of the two sides. That is a legal requirement that can be enforced under the procedures in the withdrawal agreement.

The other day, the noble and learned Lord, Lord Goldsmith, asked what could be done on enforcement. He correctly pointed out that although it would not be an arbitration tribunal that fixed the new agreement, it would have the power to enforce the best endeavours provision. Therefore, I would expect the result to be a full treaty according to these provisions within the time allotted. My time allotted has finished.

Photo of Lord Mendelsohn Lord Mendelsohn Labour 12:08 pm, 5th December 2018

My Lords, I thank the opening speakers for setting the scene for this debate so well. I particularly thank my noble friend Lady Smith of Basildon for setting the case for her Motion extremely well; I strongly support her. I have deep concerns about the withdrawal agreement and the political declaration, and I do not think that they are as illuminating as the Government believe. I am reminded of the old adage: it is darkest at the bottom of the lighthouse.

As a pragmatic businessman, I would have been open to accepting the Government’s intended plan at the very beginning to respect the will of the referendum and to set out a broad plan and timetable. But my confidence has strongly waned since then, and I truly believe not only that are we in the position of having an inadequate agreement but that it is time for us to return to the question of whether there is a place and time for another referendum.

The main long-term questions are still unresolved. The two-year period of negotiations has created an ever-larger series of negotiations, for many more years to come. All this is because the date for withdrawal was set before any plan was made. The planning and preparations continue to be inadequate, and options have not been properly evaluated. In business, we would call this stage of the process the heads of terms: we would come to the main agreement and be able to say that we had the basis of a deal, and then all the detail could be addressed in an orderly way. But this is not even remotely near a heads of terms. As an old mentor would say to me if I came back with an unfinished job, a cake with its ingredients missing is basically a biscuit. This is not a deal. Those so exhausted by this process that they believe any deal should come forward will be most disheartened by this deal’s consequences.

This deal is the unfortunate product of a process that has not just lacked long-term objectives and strategy, but been plagued by a piecemeal approach and lacked the most basic forms of consultation. It is too internally focused. There has been a deep lack of preparation and no desire to see the Government act in a way that would make this effort a national mission. It has been the story of internal political divisions and the agreement’s contents bear this out. That is not only on one party’s side, but one party is the Government.

The accompanying documents also cite the economic impact. The many economic projections all tell pretty much the same story: the loss of economic output over 10 years of a post-Brexit Britain will be somewhere between £40 billion at best and up to £200 billion. That is less than the projected £300 billion cost of the financial crisis, but it comes after it and after failed growth following the appalling austerity plan. One also has to admit that after we come to this agreement the period towards the next election will also have a tremendous amount of political uncertainty and fear for business, which will continue to be a drag on any prospect of growth. These objections also do not deal with some of the likely industry-specific consequences, be they in aviation, the car industry or across our services, which have a very uncertain future outside the EU. This is a terrible story of potential decline—one that we must be very concerned about, given the state of our public services, economy and development.

This is a matter that we must take deeply seriously and that we have to address with the public. The evidence is overwhelming. The future is not certain, but it is a certainty that we will be worse off. I might not share their view, but noble Lords can argue that Brexit is worth the economic damage it implies, that economics is not the most important consideration or even that some of these economic warnings are overblown, but it is absurd to say that there will be no damage at all. There are strong divisions in this country that will not be addressed by the outcome of the withdrawal agreement. It provides absolutely no certainty whatever, rather the prospect of continued division, uncertainty and negotiation.

The sense of betrayal from all sides of the debate has a poisonous impact on our body politic, and brings corrosion and a sense of disaffection. We can see this happening with awful things such as the terrible takeover of UKIP by the far right, which means that the next few years will be deeply unpleasant in our country unless we address this.

The agreement really does not help any of these matters and it is not the only option. Even if there is no capacity in anyone’s ability to renegotiate the arrangements with the EU, it is not the EU’s problem: it is our inability to have the right sort of vision or plan. It is easy to renegotiate. But there is now no doubt that even Article 50 can be stopped. When we come to crystallise our view we have the chance to make sure we make the right expression that we oppose the deal. We should say that it has no long-term vision, offers prolonged and ever worse division, and does not offer Britain wider economic prosperity and opportunities, and that we have to rise above our divisions.

Ultimately, we have to take a view on a new people’s vote. I truly believe we should also have remain as an option. This country has come to a point where it now understands Brexit’s consequences. They are too terrible to bear. Our position has not been resolved over two years. It is time to take this matter seriously with a long-term view.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat 12:14 pm, 5th December 2018

My Lords, I remember the late Lord Williamson of Horton coming to speak when I was a student at Oxford. He said that one morning Margaret Thatcher came down the stairs in No. 10 waving a piece of paper, saying, “I’ve read it. I agree”. The piece of paper—indeed, it would have been a few pieces of paper—was the Single European Act. We then had a Prime Minister who did her homework, who was a lawyer and who could have been expected to understand the implications of what she had agreed to. Yet, with hindsight, she and many others on the Conservative Benches felt that the Single European Act may have been a mistake.

With the withdrawal agreement that Theresa May—or perhaps one of her Secretaries of State, it is not wholly clear—has negotiated, one wonders whether anybody has read it. The most reverend Primate the Archbishop of Canterbury noted that he has read it, as have I and, I suspect, others across the Chamber, but when the Prime Minister claimed to have agreement in her Cabinet on the withdrawal agreement, that was quickly disproved. At 585 pages, it is difficult to see how members of her Cabinet or Conservative Back-Benchers could possibly have read the agreement within an hour, when they were supposed to be discussing it. There is a question about how much detail has been examined and how much time has been spent scrutinising the withdrawal agreement, which does not do what the Prime Minister claimed. It does not return control from the European Union, as advertised by the leave campaign, as Theresa May has said she wants to do, and as the noble Baroness the Leader of the House suggested earlier.

There are some good points in the withdrawal agreement, and it is important to distinguish between the withdrawal agreement and the political declaration. There are some aspects of Part 2 of the withdrawal agreement dealing with the rights of EU citizens and UK nationals which should have been dealt with in June 2016. One might say: what has taken you so long? Despite its good bits there are all sorts of hostages to fortune. The role of the Court of Justice of the European Union might be something that those of us who are passionate pro-Europeans think is a good thing, but should the United Kingdom be tied to the jurisdiction of the Court of Justice in the way it will be under the withdrawal agreement? I suspect that no leavers would want that—I see the noble Lord, Lord Forsyth, shaking his head—but I am not sure many remainers want that either.

Of course, the withdrawal agreement is supposed to take us only to the end of December 2020. Thereafter, the political declaration is supposed to lead us towards those great sunlit uplands. The most reverend Primate the Archbishop of Canterbury reminded us of Psalm 121, which talks about mine eyes looking up to the hills. The political declaration is something of a mirage. As the noble Lord, Lord Mendelsohn, suggested, it is vague and does not deliver on the expectations generated by leavers or the Prime Minister.

By now, we should be clear what the future relationship will look like. Arguably, it should have been clear on 23 June 2016. It was not. It should certainly have been clear at the time that the Prime Minister triggered Article 50. It was not. It was almost clear in July this year, when the Prime Minister claimed to have agreement on her Chequers proposal, but it was not clear then and the political declaration that the Prime Minister has negotiated does not have the support of her Cabinet—as we saw with the resignation of a second Brexit Secretary, which seemed to be more than a little careless—and it does not have support in the other place.

As the noble Baroness, Lady Smith of Basildon, states in her Motion that the political declaration,

“would do grave damage to the future economic prosperity, internal security and global influence of the United Kingdom”.

There is nothing to suggest that this is a better arrangement than we have as members of the European Union, and we should not be lured into the false logic that the Prime Minister has put forward, the noble Baroness the Leader of the House reiterated and, I regret to say, the noble and learned Lord, Lord Hope of Craighead, also suggested: we need a deal, this is the deal, therefore we should accept it. Nobody voted to be poorer, for the country to be diminished and for us also to lose control of our sovereignty. Nobody wanted that. Some leavers might have said that they would rather be worse off if we could reclaim sovereignty, but who in their right mind would want to be poorer, for the country to be diminished and for us to lose control?

I am afraid that, again, I am reminded of the words of Baroness Thatcher. She said consensus is a,

“process of abandoning all beliefs, principles, values and policies in search of something in which no-one believes, but to which no-one objects—the process of avoiding the very issues that have to be solved, merely because you cannot get agreement on the way ahead. What great cause would have been fought and won under the banner ‘I stand for consensus’?”

I would say that the withdrawal agreement and the political declaration represent consensus, except the only person who wants this agreement is the Prime Minister. If the House of Commons cannot support this deal, and if almost everyone agrees that no deal would be a disaster for the country, we have another option. We can ask the Prime Minister and the House of Commons to look again, and perhaps it is time to ask the people to think again.

When we voted to trigger Article 50, I was one of the very few Liberal Democrats who did not vote for the amendment on a referendum. I wanted to accept the result of the referendum because I thought that that was the right thing to do. However, if we cannot find a deal and can only put forward ideas that will make the country much worse off, surely it is now time to offer the people the chance to think again.

Photo of Lord Boswell of Aynho Lord Boswell of Aynho Chair, European Union Committee, Principal Deputy Chairman of Committees, Deputy Speaker (Lords) 12:21 pm, 5th December 2018

My Lords, I am struck by the gulf between the measured analysis of the withdrawal agreement and political declaration that we have attempted to offer in our EU Committee report published this morning and the intense emotions, concealed or express, felt on all sides of the House and across the nation. We have taken the view as a Committee that our role is not to plump for one particular policy or another—there will of course be differences among Committee members—but instead to offer your Lordships a cool and precise analysis of the situation, and leave it to colleagues to take their own approach.

Over the 30 months since the Brexit referendum, we have published almost 40 reports on major policy issues and on the conduct of the negotiations. It is now abundantly clear that these matters are complex and simply not amenable to simplistic solutions or, if I dare say it, soundbite policies. Most of all, despite what was said on either side in campaigning, they do not lend themselves to absolutist opinions. I ask myself: what became of our vaunted British common sense and pragmatism?

Meanwhile, I recognise that the arguments are shifting, as those who are not obsessives begin to realise that we have only a few months left to sort ourselves out. Many others, who have better things to do than wander and wade through more than 500 pages of legal documents, want this all to be over, while at the same time are rightly concerned as to how it will affect them and those nearest to them. I still deploy the simple test of the European health insurance card: after 29 March, will it still work or not?

We now at least have a deal for the withdrawal agreement, as required under Article 50, and a core text for the declaration on future relations. It is unlikely that our European colleagues will want to reopen the former or rush to reconsider the latter. In our report, we point to some serious issues over the proposed transition or implementation period. However, it does buy time for the measured consideration of the many compromises and trade-offs we shall need in a prolonged negotiation, of which, frankly, only the first phase is concluded. We also raise significant concerns over the proposed backstop while identifying positive elements and omissions and ambiguities in the political declaration. I hope that our report will provide food for thought to noble Lords contributing to this debate and more widely in the national debate.

I offer five short thoughts in conclusion. First, while we must meet the needs of the United Kingdom as a whole, we must also take full account of the views and concerns of its constituent parts, as well as the members of the wider British family, including Gibraltar, the other overseas territories and the Crown dependencies. Secondly, we must answer the conundrum of ensuring no hard border on the island of Ireland while retaining the territorial integrity of the UK and ensuring that the voices and concerns of both communities in Northern Ireland are heard. Thirdly, we should be conscious that every option open to us involves costs and compromises. There is no easy or costless change of policy. Fourthly, we should remember the habits of co-operation and friendship built up over decades of our membership and not burn our bridges with the remaining 27 member states. Finally, if we decide to jump into the unknown, remember to pack a reserve parachute.

Photo of Baroness Crawley Baroness Crawley Labour 12:26 pm, 5th December 2018

My Lords, I refer noble Lords to my entry in the register as a former MEP. What can I say? What can any of us say now that we are in the end game of this miserable national predicament called Brexit? We have seen the Prime Minister’s deal, which I am afraid gives us even less than Chequers did, especially when it comes to the ambition for frictionless borders. The Government’s latest economic analysis, after all the modelling, assumptions and hedging, adds up to only one thing: leaving the EU on March 29 means that we will be poorer than we are now, or staying in the EU, as noble Lords have said.

Of course if we leave without a deal, the impact on trade means that we could lose up to 9% of GDP and could experience an 11.8% drop in real wages. That is to say nothing of the emergency measures needed when it comes to food and medicine shortages, drinking water and disruption in travel, transportation and energy supplies. The Bank of England, which has become something of a pantomime villain for the Brexiteers, has also warned that under the worst-case scenario, house prices could fall by 30%, employment could rise by more than 7% and GDP could fall by 8%. The list goes on, is frightening and must not be allowed to happen, as our Motion tabled by my noble friend Lady Smith of Basildon outlines. A Canada-style free trade agreement means a shocking drop in GDP and real wages, according to the Government. Even an EEA Norway-style Brexit sees GDP drop by 2.3% and real wages drop by 2.8%. The Prime Minister’s deal means that we lose up to 2.2% of GDP and could experience a drop of 2.7% in real wages. Of course, as noble Lords have said, these losses will be felt by the poorest people, the marginalised and the left behind. Is this not where we came in? There are no happy stories here; no reasons to celebrate this December.

Everyone in the country is worried and people are looking for certainty for themselves, their families and their workplaces. To many, the Prime Minister’s deal looks like a kind of solution, as in, “Please make the pain stop”. We have to acknowledge that fear and anxiety in the country and offer a feasible and positive alternative. The clamour is growing, especially among our young people, for a people’s vote on the terms of our leaving. At the time of the referendum, none of us could have imagined those terms, and that vote would be an opportunity to change our minds, should we wish to. Like many on my side of the argument, I am often asked whether I want the referendum to be a neverendum, as they say in Scotland. In other words, do I want as many people’s votes as it takes to deliver the result called remain? Here is my answer. The wording of the question put to the British people in 2016 ran as follows:

“Should the United Kingdom remain a member of the European Union, or leave the European Union”?

They were not asked: do you favour Boris Johnson’s version of Brexit? Are you happy with Labour’s six conditions? Does the thought of Norway-plus appeal to you? Or Canada-plus? Or Papua New Guinea-plus? How about Mrs May’s Chequers plan, as opposed to her most recent plan? Is full access to the EU’s Galileo satellite navigation system something of a red line for you and your family? What about freedom to immigrate low-skilled workers into the UK, or special provisions for our friends in the DUP when it comes to the very serious issue of the Irish border?

It occurred to me the other day that most people, who do not spend their lives looking at economic analysis and reading policy papers as we do, probably imagine that the Irish backstop is a new rugby move for the forthcoming Six Nations.

Even if I were a fervent Brexiteer—which, thank the Lord, I am not, sir—I would have to conclude that since 2016, Brexit has grown as many heads as the Hydra of Lerna. No general election or referendum result binds the people’s hands forever. It is bogus constitutionalism to argue that anyone, in any one spasm of time, should be bound. The bald truth is that no version of Brexit currently available can possibly claim to be the settled will of the country. So, in the week when the Government have been found in contempt; when the Advocate-General of the ECJ has advised that Britain can unilaterally cancel Brexit; and when Parliament has voted to wrest control from the Executive in the event of no plan B beyond 11 December; I have to say that it is a case of back to the people.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench 12:33 pm, 5th December 2018

My Lords, two years ago almost to the day, on 1 December 2016, I spoke in a debate on the Brexit UK-EU relationship. I said,

“one issue, little debated, is a presumption in discussions about Brexit that the EU is a known, unchanging quantity—an edifice of predictable structure”,—[Official Report, 1/12/16; cols. 342-43.] and future. Since then—nor in the time before the referendum—I have not seen much serious debate on the stability and constancy of the European Union, in particular on the controlling part played by the Commission. No measuring scenarios, like the Bank of England’s, about political, global or economic crosswinds in the EU are available, let alone any relating to defence threats. Looking to the late 2020s, I would be amazed if there were not significant changes to the EU of today.

Let me cast a few pebbles into this supposedly placid EU lake, and ask: when the ripples reach land, will they disturb the shape of the EU’s shore, acknowledging first that a UK withdrawal itself must wash over the 27? Financially, there will be less for pan-European schemes once the UK departure is complete. Will there be fewer members, if others leave, or more than 27, if some of the minor aspiring nations, or indeed Turkey, join? All that will have financial consequences. If the UK suffers recess, as some predict, surely that will not remain an internal matter, and trade for the EU and others would also be affected and suffer.

How stable is the euro? The one-size-fits-all approach has been exposed to frequent stresses. Not all of the 27 are of a similar political mind about some of the direction that comes from the Commission. Will the Italians be brought to financial heel? Will Spain’s problems with Catalonia be contained? Will the Visegrad states remain acquiescent? German suggestions to replace France on the Security Council with a pan-EU member are hardly conducive to good fraternal relations.

The EU could change greatly—the ripples from my pebble could reach far and wide. For the moment, the EU’s prime focus is to secure a good deal for itself. Indeed, there is a game book for that. Let us remember that commissions faced with an unsatisfactory referendum result, such as in Ireland or Denmark, seek another. Secretly, the EU may be thrilled by homespun ambitions for a second UK referendum. It can only half claim to have spooked it with the current withdrawal agreement.

The backstop is a serious, second referendum-triggering device, were the EU unwilling to agree acceptable trading arrangements. That pebble could cause the UK a constitutional tsunami.

I move to the decision facing the other place next week: should the Government go ahead with it? All expert analyses and predictions fail to deliver a single answer, and reasoning ignores a fundamental: does the EU itself prosper? Risk-averse voters might be guided by a motto of caution: “A bird in the hand is worth two in the bush”. But with maybe much of £39 billion at risk for the EU, is that roadblock of a backstop still really non-negotiable? Both the UK and the EU seem to dislike it. Everything has its price. Successful punters might try for that.

On balance, an agreement now is best. Commons and Parliament are past masters at saying yes or no to a proposition, but multiple choices in a referendum or in Parliament would be a recipe for disaster. Noble Lords will recall that, when trying to choose one of six options for Lords reform, the Commons could not agree on a single one. Multiple choice is a route to more constitutional mayhem. We have to go for the option available.

Photo of Lord Tugendhat Lord Tugendhat Conservative 12:37 pm, 5th December 2018

My Lords, this is a sad day for me. As a young Member of Parliament in 1972, I voted for the European Communities Act, which took us into the European Community, as the Union was then called. Some years later, I served as a European Commissioner, and I look back with pride at the achievements of the European Commission—on behalf of Europe as a whole and of the United Kingdom.

Now, as an elderly Peer, I find myself supporting a proposition to take us out of the European Union. I do so because I respect the result of the 2016 referendum. I believe it is incumbent on us to respect the results of democratic votes. The Government have a duty to seek to bring the wish of the British people into effect, and I think they have done so. They have done so in a manner that certainly costs the country economically—I will come back to that—but that costs us less than might otherwise be the case. It is far from an ideal agreement, but it minimises rather than maximises the costs of our departure.

This short-term consideration is important. I understand, although I do not sympathise with, the Brexiteers’ wish to put as many aspects of membership behind us as possible, but we have been a member of the EU for 45 years. That is as long as Queen Elizabeth I reigned. It is as long as the German Empire from Bismarck to 1918 lasted. It is a very long time, and many aspects of our economic life, domestic as well as international, and much else besides, are inextricably bound up with the EU. The same applies to our security, foreign and defence policies. The sharper the break from the EU, the greater the disruption. The greater the disruption, the greater the cost. The greater the cost, the harder it will be to reorient ourselves to take advantage of the opportunities and overcome the difficulties of being outside the European Union.

Leaving must be a process, not an event, and I believe that the deal before us is an acceptable route to take us out without too much economic damage. There is no getting away from the fact that there will be economic damage. The Treasury and Bank of England assessments and scenarios make that clear. In economic terms, we would be much better off staying in, and there is no surprise in that. The United Kingdom has had an important influence on the construction of the European Union, and the European Union works very much to the advantage of the United Kingdom.

Not only that, any attempt to undo 45 years of being involved in something is bound to come at an economic cost. When systems are as closely integrated as ours is with the rest of the Union, there is bound to be a cost, and I cannot understand the reluctance of Brexiteers to accept that. The Government’s duty is to try to ensure that the short-term cost is managed in a way that opens up as many as possible opportunities for the future and closes down as few as possible. Basically, they have managed to achieve that with this agreement.

Does it carry out the wish of the British people as expressed in the 2016 referendum? I believe that it does. It takes us out of the European Union. It takes us out of a political union. It takes us out of the common agricultural and fisheries policies. We regain control of immigration. The supremacy of the European Court of Justice is brought to an end. As far as is possible in the modern world, we regain control of our own laws.

For all these reasons, I support the deal that the Government have negotiated. I do so for another reason as well. I believe that it provides a basis—and I see few other such bases—to overcome the deep divisions that have opened up in our society and to begin to rebuild the national unity to which the most reverend Primate referred.

As we look at the arguments for and against the deal, as we look at the arguments for and against membership of the European Union, a consideration being lost is the extent to which the unity of this country is being fragmented. Divisions have opened up between regions, classes and interest groups—even within families. There is great urgency to bring the situation to an end and to build for the future.

I support the deal, but if it fails—if the House of Commons rejects it—I will throw my support behind those who will do whatever they can to prevent a crash-out no deal.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 12:44 pm, 5th December 2018

My Lords, the Prime Minister has honourably striven to do the impossible: to find a compromise between remainers, for whom Brexit is above all a threat to our economy, and leavers, for whom what matters most is the recovery of our sovereignty. Remainers think that the economic cost of withdrawal on the terms she has negotiated is too great and see the deal as far inferior to remaining in the European Union. They think we should revoke our Article 50 declaration. The reckless among them seek a second referendum. A second referendum would do deep damage to the already battered faith in our politics and put paid to reconciliation in our country for a long time. For leavers, the deal fails to release us from the tentacles of the EU and from the democratic deficit that was built into it at its origins.

It is not only leavers who cannot accept that we should continue, perhaps indefinitely, to be subject, with no power of decision on our part, to rules determined by the EU governing swathes of our national life, including policy on the environment, employment, state aid, competition and even tax; to be subject to the continued jurisdiction of the CJEU as arbiter of the agreement and interpreter of EU laws by which we remain bound; with a separate regime for Northern Ireland; without the right to liberate ourselves at our own volition from the Irish backstop; and locked inside the customs union and the EU’s external tariff wall for as long as the EU wants, with no realistic chance of achieving an independent trade policy. How can we as democrats accept that?

Amid the passions of this debate, in your Lordships’ House we should seek to state the issues accurately. Let us dispose of the canard, as our French friends say, that the demand to take back control masks ugly attitudes towards immigration and a widespread vicious nativism at odds with liberal values and internationalism. Yes, there are racists and xenophobes among those who voted leave; their attitudes are odious. Nobody, however, can sensibly suggest that more than a minuscule proportion of the 17.4 million of our fellow countrymen who voted to leave were such bigots. It does not follow that, if you want to extricate your country from the undemocratic structures of the European Union, you are illiberal or insular.

The evidence published in April by the Nuffield Centre for Social Investigation confirms that the paramount concern of leavers is sovereignty: our right to make our own laws through our own representative institutions of government, accountable to our people, together with the supremacy of our own courts. We see this clearly now in the reaction of leavers to the withdrawal agreement. It ends free movement from the EU into the UK. If immigration was their key concern, leavers would be welcoming the agreement, but they are not. They are objecting that the withdrawal agreement does not allow us to take back control and to recover the sovereignty that we lent to the EU through the European Communities Act 1972.

Let us also have a realistic debate about no deal, on which the Motion in the name of my noble friend invites us to focus. The Government are right to prepare for no deal, and in no spirit of trepidation. They would be right also to prepare to protect those in poverty who are at risk of particular suffering during the transition, a point that the most reverend Primate made very powerfully. But no deal certainly need not be a disaster or a catastrophe, as so many noble Lords insist. It need not mean crashing out or a cliff edge. There would be no need for aeroplanes to stop flying, for Kent to become a lorry park, for supply chains to seize up, for medicines to be unobtainable and for food to be rationed, as the litany goes. We would not face the Bank of England’s worst-case scenario of a disorderly exit, which is, as the former governor, the noble Lord, Lord King of Lothbury, has noted, based on entirely unrealistic assumptions.

Appendix A of the Bank’s response to the Treasury Committee, entitled “Impact on the UK economy of a transition to WTO”, offers a no-deal scenario that we can well live with. Philip Aldrick, economics editor of the Times, has helpfully translated the Bank’s technical prognostications into relatively plain English. In this scenario, he explains, we go to WTO rules after a smooth transition in January 2021, retaining for ourselves the EU’s existing 90 external trade deals; sterling falls by 8.5%; we welcome a net 85,000 immigrants—tens of thousands—into Britain annually; and our GDP is 5.25% less in 2023 than if we had remained in the EU. Under the Prime Minister’s deal GDP would be 3.75% less. The difference between the Prime Minister’s deal and an orderly no deal is just 1.5% of GDP.

Remainers assert that people did not vote to be poorer. With the orderly no deal projected by the Bank, they will not be poorer than they were; they will be somewhat less wealthier than they might have been. Leavers, who voted to leave despite the lurid warnings of the first project fear, will be happy to pay that price for the restoration of their sovereignty.

It is in the interests of the peoples and businesses of the EU to avoid chaos and agree an orderly no deal with us. The EU has already offered to reciprocate air traffic rights and aviation safety certificates, and in its own interests it will surely act sensibly in relation to road transport. Any additional checks would be very limited. There will be no legal requirement to inspect every vehicle or to carry out checks at the border itself, and anyway there will not be enough staff and equipment to check more than a minute proportion of vehicles. Indeed, new EU-imposed non-tariff barriers will be illegal under WTO rules so long as our products exported into the EU are still made to the same standards.

It is objected that under WTO rules and without the customs union, there must be a hard border within the island of Ireland. That problem has been greatly overstated and I do not believe that the Good Friday agreement would be in jeopardy. The Permanent Secretary at HMRC has made it clear that there is no need for the UK to erect a hard border in any scenario. Nor, as they have said, will the Republic or the EU impose one.

The US and China trade with the EU on WTO rules. We can do likewise. Better, of course, would be the rapid conclusion of a free trade deal with the EU. Given where we start from and based on the EU’s deal with Canada, that is entirely possible. EU countries that sell us £300 billion of exports will be impatient for the EU to reach a free trade deal with us. That is what the Government must now work for.

Photo of Lord Empey Lord Empey UUP 12:52 pm, 5th December 2018

My Lords, much has been said in this House about the Irish situation. The noble and learned Lord, Lord Mackay of Clashfern, reminded us of some of the things that happened in the bad old days, when members of the judiciary were attacked. Indeed, a Member of this House who held that role found a bomb under his car. Fortunately, he discovered it and it was disarmed. We get the very strong message that the noble and learned Lord has set out.

With this deal in front of us, I find myself in a virtually impossible position. I want to see a deal with the European Union, but that does not mean that I oppose the decision of the British people to vote for Brexit. After all, it seems to be forgotten that this Parliament provided them with that opportunity. The concerns that many Members are currently expressing were not expressed at the time, even though some of the options could have been foreseen. In many respects, complaining now that the rules should be changed after the match is over does not fall well, because we, as a Parliament, let it take place.

During that campaign we had grossly exaggerated claims from either side: it was a poor-quality debate and an unedifying spectacle. As a consequence of what was said on both sides, the economic forecasts that people are now bandying around in all directions have little or no credibility with the general public. Given the fact that most of those who are making them cannot even anticipate 12 months ahead, let alone 15 years ahead, that will come as little surprise to some of us.

I gently remind the noble Baroness, Lady Smith of Basildon, that when we talk about getting a good deal and preparing for negotiation, her party leader called for the immediate triggering of Article 50 after the referendum—that was before we had even had a chance to think our way through.

While I would prefer to look at this in a pan-Unionist position from the whole of the United Kingdom, because so much of it has been focused on my Province’s position, it is inevitable that that will guide what I do next week. I fear that the whole border question has been grossly exaggerated. The real border between the United Kingdom and the Republic of Ireland is between Dublin and Holyhead. At a recent meeting I was at, the Irish ambassador publicly said that between 80% and 90% of Irish goods go to or via Great Britain to reach European markets and the British market. Only 1.6% of its exports go to Northern Ireland and only 1.6% of its imports come from Northern Ireland. There are, of course, goods in transit, and most of the trade is in agricultural products, alcohol and other matters. The point is that the real border is between Dublin and Holyhead. That is where goods in volume go, yet it has hardly ever been mentioned in this debate.

I have to say that while the Prime Minister cannot be faulted for her work ethic—far from it—my party wrote to her on 7 December last year, and after the European Union produced its papers in March, to seek assurances. On 8 December, some people in Northern Ireland put out statements to say that there would be no regulatory differences between any parts of the United Kingdom. They were proved wrong. There will be differences. Indeed, a new manufacturing logo called “UKNI” will be developed to show that a product is made exclusively in Northern Ireland.

I would like the Minister in his wind up to address this: the Attorney-General for Northern Ireland made clear that we will not be free of the jurisdiction of the European court. We will still be guided by its decisions and we will not be free to make the trade deals that we want as a country. I also hear people say, “Well, we’ll get back control of our fishing policy”. In theory, yes, but in practice, if you have been listening to President Macron and others, you will know that everybody will have their slice of the cake when it comes to it. To put ourselves in a position where we are incapable as a nation of taking a decision, whether it is on our trade or our foreign and other polices, without having other people mark our homework is quite concerning.

I have listened very carefully to the noble and learned Lord, Lord Keen of Elie, the Lord Advocate and a leading Queen’s Counsel. He stood here the other day and talked about this arbitration process and using best endeavours. I am a veteran of the Belfast agreement: it contained “best endeavours” and stated that some people would use their influence. Instead of taking two years for them to use that influence, it took nine years—indeed, it is not clear that it has been used.

To my friends in the Government I say this. I understand that some people are bored with this and say that we have to do it because it is on the table. It may be on the table, but I fear that it is not the right deal for this country at this time, and it certainly breaks the red lines that the Prime Minister gave us assurances about in December last year and in March this year—that there would be no barriers or border up the Irish Sea. There will be. We will be in a different place, and if the agreement goes through as it is now, in 15 years’ time, that difference will widen. Once we get into this backstop—I wish it were a rugby move, as the noble Baroness, Lady Crawley, put it—we will be very lucky ever to get out of it.

Photo of Baroness Deech Baroness Deech Crossbench 12:59 pm, 5th December 2018

My Lords, the situation is changing even as we speak. Yesterday we heard the legal advice given to the European Court that Article 50 could be unilaterally withdrawn by this country to put us back where we were—an unsurprising opinion, given the federal push of that court. Given these options of going back, “Macbeth” sprang to mind:

“I am in blood

Stepp’d in so far that, should I wade no more,

Returning were as tedious as go o’er”.

That is one of my themes. I should also add that I do not think the Motion in the name of the noble Baroness, Lady Smith, helps us. It is unconstructive and provides no solutions.

This national debate is not just about the economy. It is not even about whether we will speculatively be poorer. For leavers, it is about the recovery of self-determination and self-respect, democratic governance, the rule of law and respect for human rights, all of which have been under attack by and within the European Union. It is in that light that we must consider the withdrawal agreement, which is more about European survival than anything else. As others have explained, it takes all the money on the table, but holds us in a customs union, potentially for ever, through the backstop, unless we accept whatever departure terms the EU may dictate. Withdrawal is indeed like a divorce. One side will be paying up indefinitely so that the other can keep up the style of living to which it is accustomed. We have no need to see the legal opinion that was extorted yesterday. It was obvious.

I do not believe the professions of wishing the backstop to be short term. The Joint Committee will be weighted towards Europe and unaccountable and its meetings will be confidential. It is unacceptable to have the ECJ involved in arbitration over whether we could leave the backstop. As I have said before, it is a court with a federalist mission, with judges on short-term contracts with vast salaries and pensions—a system that would be unacceptable here—who have recently made judgments, such as upholding the non-disclosure of MEPs’ expenses and the clamping down on gene-edited crops, that are simply wrong. It is no impartial arbiter.

The protocol locking the UK in without a right to leave is unique and unprecedented in trade treaty law. Will the Government persuade the PM and the EU to drop the backstop? Perhaps the Minister can assure us that the Vienna Convention on the Law of Treaties will enable us unilaterally to withdraw from the withdrawal agreement, as I believe it does, because, as that treaty specifies, withdrawal is possible unilaterally when it is contemplated and when there is, as there probably will be, a profound change of circumstances.

As far as Northern Ireland is concerned, it is sad that threats of terrorism should affect our policy, but my reading is that the agreement will make Northern Ireland subject to Dublin’s influence. It is likely that unification is the only answer to the inflexible approach now being taken. Perhaps that was always what was in the Republic’s mind. Northern Ireland’s democracy is being taken away; it will remain subject to EU law and control without having a vote, which is contrary to human rights. Either the EU should accept British bona fides on avoiding a hard border or the technology that we know is available should be presaged in the agreement. Were there to be a clean break, the EU could force Ireland to conduct checks at the border. This might be the very shock needed to make Ireland find ways to arrange checks away from the border. A clean break might be better for Northern Ireland than this agreement.

As in a bad divorce, the financial obligations will continue long past any commitment of the parties to each other. The meal ticket for life encompasses our meeting commitments entered into in 2020 and 2021—a great temptation to the EU to commit to as many programmes as it can in this period while we will have no vote but have to pay. We will have to meet the pension obligations incurred for the lifetime of the pensioners and their dependants. All these sums will be calculated by the EU. The Union law referred to in the agreement includes the Charter of Fundamental Rights, in blatant contradiction to Parliament’s decision not to include that charter in the carrying over of EU law after March. All in all, our sovereignty has not been reclaimed. It is even more diminished, and the rule of law is compromised by the uncertain scope of articles referring final decisions to bodies outside this country and not under our control.

Would a second referendum help? Quite apart from the difficulties in arranging one and deciding what the questions should be, it would create further constitutional complexities. To hold another drains the last of its legitimacy; it means none is legitimate. A referendum’s legitimacy lies in its one-off quality—it is monogamy compared with bigamy or polygamy.

If we leavers were regarded as ignorant and misled in 2016, how can any voter in a hypothetical second referendum be regarded as competent unless they have read the 585 pages of the agreement, are able to choose between four or five options and have got to grips with the backstop, the customs union and the single market? In any case, it is likely that leave would win again, because if there is one element that even a staunch remainer will not stomach, it is being bullied into changing their mind under a barrage of state propaganda. The British voters remember how the Dutch and Greek nay-voters were treated, and up with this they will not put. Threats, inducements and speculative financial prognoses will not work.

We cannot accept an agreement about the future of the country that forbids us to leave without the permission of the other party. That is exactly the situation that leavers have been trying to escape for decades. We want to live under a safe, legitimate rule of law. If the Government cannot or will not drop the backstop and are not prepared to rely on the international law of treaties to assure a way out, we must have a clean break. That would be better than being chained to the decaying body that is the EU. We could abide by WTO rules and let the EU discover that its greed will ultimately lead to its losses.

Photo of Viscount Astor Viscount Astor Conservative 1:06 pm, 5th December 2018

My Lords, the most reverend Primate the Archbishop of Canterbury quoted the King James Bible when he spoke. I offer a quote from a rather different hymn sheet, as it were:

“Welcome to the Hotel California … You can check out any time you like, but you can never leave”.

That Eagles hit from 1976 rather aptly describes the one flaw in the Government’s exit proposal. If you do not have the right to walk away, you are permanently held hostage in any negotiation. I wish we were not here. I voted to stay in the EU.

It is claimed the backstop will not be needed and agreements will be negotiated well before the end date. If that is the case, why is it there? Do any other EU treaties have no exit clause or threaten to break up a country? I think not.

In the last few weeks, we have seen how the Spanish raised the issue of Gibraltar. The French want a permanent right to fish in our waters. Among the 27, there are bound to be others who want to gain something from the negotiations—not necessarily from us, but by holding the negotiations hostage and blocking the agreement. Angela Merkel will not be in power. Junker and Barnier will have moved on. President Macron is hardly flavour of the month in France. Other EU Governments will have been replaced by new Administrations.

Some have claimed that we can just walk away from a treaty. I think not. I leave it to lawyers cleverer than I to deal with that proposition, as I am sure they will.

As we have heard during this debate, the Labour Party, the Lib Dems, the DUP, the SNP and many Conservatives will vote to reject the deal next week in the House of Commons. The Government will be forced to reconsider. A hard Brexit is not the only option. It is reported that the EU will negotiate. It is in its interests to do so. A hard Brexit is bad for the EU and terrible for us.

If the EU agrees for the backstop to be moved from the agreement to the political declaration, I believe the agreement could get through Parliament. The Irish would have to back down, but after all they have the most to lose from a hard Brexit. The Labour Party’s six tests could be met.

There are other solutions; they are more complex and difficult to achieve. As we have heard and read, the Government could assert our rights under the EEA treaty to remain part of the EEA after Brexit, and apply to join EFTA. It would be a kind of Norway-plus. We could remain in the customs union. That could include services, which make up the majority of our GDP. Further negotiations on a Canadian-style deal could continue until the Irish border question is resolved. That probably passes Labour’s six tests as well. We would keep our fishing, which removes the SNP’s block. More importantly, it maintains the integrity of the United Kingdom, which is crucial for the DUP, as we have heard from the noble Lords. We would be outside the common agricultural policy and not subject to the ECJ—a core issue at the start of the negotiations. We would be subject to the EFTA Court for disputes and would have only limited mechanisms to restrict free movement, but that would be a small price to pay for not harming our economy or undermining the union.

It is not a perfect solution and has many disadvantages. I suppose it is a halfway house—Norway-plus—but it might command a parliamentary majority. Those in favour of Brexit would see it as the first stage of perhaps a Canadian-style deal. I am not in favour of another referendum; it would be a last resort and it really would show the collective failure of government and Parliament. However, it would be difficult to argue against a referendum if there is no workable deal—if there is a logjam. Imagine the chaos of the referendum, with a pro-remain Prime Minister leading a largely leave party, and a pro-Brexit leader of the Opposition leading a largely remain party. The result would be utter chaos. We really should avoid that.

There may be other solutions, and I am sure there are better solutions than the ones I have suggested, but we should consider all options. We cannot allow Brexit fatigue to allow us to stumble exhaustedly into a bad outcome. Following the vote in another place next week, I hope the Government will seize the opportunity to go back to the EU and renegotiate the backstop. Doing so would make the deal workable and good for this country and generations going forward.

Photo of Lord Liddle Lord Liddle Labour 1:12 pm, 5th December 2018

My Lords, I first place on record my personal thanks to the clerks and advisers of the EU Select Committee, of which I am a member, and to the noble Lord, Lord Boswell, who chairs it extremely well, for producing an excellent analysis of the withdrawal agreement and the political declaration. We all owe them thanks. Of course, we now have to come to a political view of where we go next.

The diminishing band of supporters of the Prime Minister’s deal are essentially repeating that Victorian ditty “cling to nurse for fear of something worse”. That is the best argument they think they can give. Last week, they were saying, “It’s this deal, no deal or no Brexit”. After yesterday, it looks as though the choice is becoming, “No deal, no Brexit, or something we will cobble together in the next fortnight or so”.

The fact is that, despite months, or even years, of interminable debate in the Government, there is no clarity in this deal about the future economic relationship, or the security relationship. I do not know how the noble Baroness, Lady Evans, is able to describe it as presenting a clear vision; there is no clear vision. There is tremendous confusion about the Northern Ireland backstop. At one point we are told it is temporary and will never happen, then we are told it is wonderful because it gives us tariff-free access to the single market without any of the obligations. Let us be clear: the EU is offering in the declaration is tariff-free access, but that is not the frictionless trade on which our manufacturers depend. The fact is that if there is any regulatory divergence we will face full inspections and border checks: this is what the Brexiteers call taking back control.

Some think that we can move to a Canada-plus agreement, but I think that is impossible. For the EU 27, that now conjures up a bad joke: Boris Johnson, in some cartoonist’s pose, trying to have his cake and eat it. They are fed up with that. They have had their fill of this British attempt to have it both ways.

Is a better exit deal possible? There is a lot of talk about EEA membership at the moment. I am a bit of a sceptic as to whether it can be done now. If the Government—and indeed the Opposition Front Bench, I have to say—had come out for Norway as soon as we had had the referendum, then the EU might have welcomed that with open arms and on the back of that solid economic foundation we could have built a strong vision of co-operation and partnership. But now, after two years having had to deal with this Government and all its divisions, they think that half the party opposite is not interested in a long-term relationship of co-operation and partnership, so the chance that they are going to pay heed to Michael Gove’s idea of, “Let’s have Norway for now”, is frankly laughable.

The choice comes down to no deal or a referendum with a clear choice to remain as the only way to draw a line under this ghastly episode in our history. Some say that this would be a defiance of democracy. I do not see how putting something to the people is a defiance of democracy—they have a big deficiency of logic to explain. There may be a problem with people who voted to leave being disillusioned as a result of a second referendum that voted to remain. For me, that is a big reason why this next referendum, if it happens, cannot simply be a vote for the status quo: it also has to be a vote for a new deal for the left-behind communities of Britain and a new push for real reform in Europe—not the Europe we have, but the Europe that could be.

Some of my Labour colleagues worry about this because their constituents voted to leave. I want to address a few remarks to them. How can you meet an obligation to your constituents if you know that what you are voting for will damage their economic prospects, their life prospects, and destroy decent jobs? It will put a future Labour Government in a position where there is far less money to spend on vital public services. People say, what about free movement? Again, while there may be some short-term political benefit in low-skilled migration being cut, in the longer term, in an ageing society with a contracting workforce, this will mean fewer people to tend to the sick and helpless. How will we make our ambitious plans for the NHS work if we cannot get the labour to do the caring? We have to think again.

How can social democrats in this country betray all those young people, of all social classes, who see Europe as part of their destiny, who regard free movement not as a burden but as an immense freedom that they enjoy and who sense that the only wat Britain can play its part in meeting the great global challenges of our time is by close co-operation with those neighbours who share our values and interests? The next days and weeks will test whether Labour remains true to its international heritage or whether it submits to an unthinking populism. I hope very much, and believe, that the representatives of the party of conscience and reform will rise to their responsibilities.

Photo of Lord Wallace of Saltaire Lord Wallace of Saltaire Liberal Democrat 1:20 pm, 5th December 2018

My Lords, there have been occasions in the past two years when I have reminded myself that the Vote Leave campaign’s personnel overlaps with that of the Global Warming Policy Foundation, the TaxPayers’ Alliance and other right- wing think tanks. After all, the Global Policy Warming Foundation has made its entire pitch by denying the evidence in front of it, and the TaxPayers’ Alliance by promising that taxes can be cut without cutting public services, while promising at the same time that spending on the NHS can be increased. I fear that the speech by the noble Lord, Lord Howarth, promising an orderly no-deal exit came into something of the same category. I recommend to him Sir Roger Gale’s speech in yesterday’s Commons debate. As a Kent MP, he was talking about the implications of an unavoidably disorderly no deal.

Now we have this deal in front of us, which is justified on three grounds: that it restores British sovereignty; that it will, eventually, allow the UK to negotiate independent trade deals with third countries; and that it will save us the money that we have contributed to the shared EU budget, from which the Prime Minister keeps implying we get nothing back. It does none of those things. British sovereignty cannot be absolute in an overpopulated and interdependent world. Since we joined the European Community two generations ago, our economy has become highly integrated with those of our neighbours and other industrialised countries and significantly foreign owned. We are dependent on the good will of American, German, Japanese, French and now also Chinese multinational companies for our continued prosperity. Our media and our football clubs also have a high proportion of foreign owners, personnel and players, yet Brexit campaigners insist that the overwhelming threat to British independence comes from the Court of Justice of the European Union. Escape from that, and we will be free and independent.

There is no evidence to support the myth that the UK on its own will be able to negotiate better trade agreements than those it benefits from within the EU, nor that there is a significant group of third countries committed to free trade in contrast to an allegedly protectionist EU. President Trump is actively undermining the WTO and threatening a trade war between the USA and China. Nor is there any likelihood that major trade deals can be completed within the short transition period we have negotiated with the EU. Margaret Thatcher understood that the creation of the single market offered Britain the world’s largest open market for frictionless trade. This agreement’s rejection of the single market rejects her legacy.

Nowhere in the British debate, before the referendum or since, has any supporter of Brexit admitted the link between Margaret Thatcher’s Bruges speech of 1988, which I remember well, and our net contribution. She argued passionately that Prague, Warsaw and the other capitals of eastern Europe are also part of our historic European region. Since the Berlin Wall fell, a rising proportion of the payments that Britain, together with Germany, the Netherlands, France and the other net contributors, has put into the common budget has gone towards the stabilisation of eastern Europe, thus contributing to our own and our shared security. Let us remind ourselves that Norway has been contributing heavily as well. We have also contributed to shared resources, such as the EU technical agencies and the common research budget, from which we have benefited a great deal. As we prepare to leave, the Government are recruiting, at substantial extra cost, thousands of extra civil servants and setting up national agencies to replace what we are losing, and if we really want to control our borders we also need a large increase in the Border Force and in maritime patrol.

Margaret Thatcher also cared deeply about Britain’s place in the world. She understood that close relations with France and Germany, as well as with the USA, are central to Britain’s international standing. Those who claim to be her successors today interpret “global Britain” as a country that turns its back on continental Europe and pursues independent partnerships with China, India, the Middle Eastern monarchies and, of course, the Anglo-Saxon world, rather than grounding our global role in our European context.

It is extraordinary that a Conservative Party that used to stand for a strong British foreign policy has failed to spell out any coherent alternative rationale for our international role in the two years of drift since the referendum. There is no vision and no strategy. The political declaration offers only vague phrases on any framework for future foreign policy co-ordination.

I follow the noble Lord, Lord Liddle, in arguing that the Government are neglecting the domestic problems that lay behind the English majority that voted to leave the EU. IPPR North yesterday published figures showing that public spending cuts across the north of England—the regions that voted most heavily for Brexit—have been much deeper than in Scotland, Wales, London or the south-east. The OECD last week showed that Britain and the United States are by far the lowest spenders on labour market training among industrial democracies, which means we continue to rely on recruiting immigrants directly to fill skilled positions. The Chancellor nevertheless recently repeated his promise that taxes will be cut further, following the small-state ideology of the libertarian right and the TaxPayers’ Alliance—from which, I was surprised to read, the Leader of the House has apparently recruited her new spad.

If we are to bring the country back together, we need a long-term strategy to invest in this country’s most deprived towns and regions, whatever the outcome of our current political crisis over the EU. If we are to pursue the reconciliation for which the most reverend Primate the Archbishop of Canterbury rightly calls to heal the wounds that the 2016 referendum exposed, we have to tackle inequality, poverty and social divisions within this country. It will be easier to achieve that reconciliation if we sustain the foundations for Britain’s long-term prosperity and security within the EU rather than through this flawed deal.

Photo of Lord Bew Lord Bew Crossbench 1:26 pm, 5th December 2018

My Lords, I rise to address the vexing Northern Irish backstop issue. I should perhaps first say that I entirely accept the Government’s good-faith desire to deal with the difficulties created for the Irish Republic by Brexit—in particular, their desire to avoid a hard border in Ireland.

The Government indicated before last Christmas that there are no circumstances in which they would create anything that might be described as a hard border in Ireland—none at all. There are no circumstances even now, including a no-deal Brexit. We have greatly exercised ourselves, not so much to prevent a hard border on our side but to ensure that the EU will not tell the Irish Government, “You must establish a border on your side”. Maybe we were right to do it, but we should be absolutely clear that that is what we have been doing. We have put ourselves through a lot of pain to do it, and I absolutely accept it is right to be sensitive to the needs and problems created for Ireland by Brexit.

We ought to be clear about exactly what we have done and why, and not talk in too general terms. Even the noble Baroness the Leader of the House this morning made another, more generalised statement that this is being done to save the Good Friday agreement. She knows my admiration for her, and I have spent significant time with her. Having grown up in Northern Ireland, I know her understanding of and sympathy for Northern Irish issues. But there is one great problem with the backstop: it does not protect the Good Friday agreement. The reason is twofold. First, if people do not have democratic control upwards—the Matthews European Court of Human Rights case raised this issue in the context of Gibraltar in 1999—you have a problem. I turned to the Attorney-General’s advice this morning to read if there was any reference to the Matthews case, which clearly bears on the situation envisaged in the backstop. There is no such reference.

The Good Friday agreement is profoundly based on a bottom-up approach to north/south regulatory arrangements, not a top-down approach. The backstop is a top-down imposition on how Northern Ireland matters will be handled in future. There is a huge gap between the Good Friday agreement and the backstop; there is no avoiding it. I was myself much involved in the period between 1993 and 1998 in the struggle for the Good Friday agreement, and I spent much ink writing newspaper articles to convince the unionist community that you could have a north/south arrangement that did not automatically drag you into the orbit of the Irish Republic—that there were areas in which you could co-operate pragmatically, and that this would work. The great achievement of the Good Friday agreement since 1998 has been that these areas have grown without controversy; they have created little tension, and what tension we have had is all to do with other issues such as decommissioning and the implementation of the Good Friday agreement. It is quite remarkable how successful this has been. The objective was to end the cold war between the north and the south and we did so, but that is not the model in the backstop. It is absolutely clear that the model of the Good Friday agreement is not the model in the backstop.

We could look at this another way and talk about the disappearance of paragraph 50 from the text of the December agreement. The Prime Minister, even after Salzburg, explicitly referred to her support for paragraph 50, which places the Northern Ireland Assembly at the centre of north/south regulatory developments and the relationship with the EU. But it is not in the final version of the report. You could say that there is a category problem here: that EU law is dealing in a clunky way with nation states, that it has difficulty dealing with the subtleties of political agreements in Northern Ireland and so on, and that the language is creating a problem. You could say that the many references in the document to defending the Good Friday agreement in all its parts must mean that people understand that at its centre, the agreement say that, on issues such as north/south regulatory alignment and harmonisation, you must have “the specific endorsement of the Northern Ireland Assembly”. You could say that they know all that is there, and that is what they mean by supporting all aspects of the Good Friday agreement. You could say that they have read paragraph 17 of the Good Friday agreement, which says explicitly on the matter of EU issues that the Northern Ireland Assembly must play the key role in determining how this develops. You could say it—unless you have read what the backstop on agriculture actually says.

Article 10 of the backstop provides that the EU law on agriculture and environment should apply in full in Northern Ireland and that to enforce EU law, neither the UK Government nor the Northern Irish Government are allowed to carry out checks on farming in Northern Ireland. That is precisely the area, by the way, where the agreement has worked so well up to now—protecting animal health on the island of Ireland. It was one of the models, and it has worked like a dream. Now, however, the British Government are explicitly not allowed to carry out checks if there could be an animal disease such as mad cow disease on a farm in Ballymena, for example, and nor can the Northern Irish Government. That is how the agreement is interpreted in Northern Ireland. The language is absolutely explicit: it is repeated at page 429 of the withdrawal agreement and in two or three other places. Why it is there, I have no particular idea.

To be honest, the hope is that the EU does not care too much about this point, but it is a sign that we are getting very close to infringing the basic principles of the agreement. You can defend this on lots of grounds, some of which I absolutely accept, but you cannot defend it on the grounds that it is defending the Good Friday agreement. It is constructed on an entirely different principle: top-down, not bottom-up. This is a huge difficulty that will have to be attended to; otherwise, we lose the template of the Good Friday agreement, which all parties in Northern Ireland accept. Even now, when we cannot make it work, everybody accepts that that is the basic template for a settlement. If we throw it away, which will be the effect of going along these lines, we will be taking a massive risk with the stability of Northern Ireland.

I read the Attorney-General’s legal advice this morning in the hope that some of these issues would be addressed. It is extremely interesting legal advice but nothing is said about the implications of the 1999 Matthews case—the Gibraltar case—which raises these issues. Nothing is said about the obvious conflict between the core principles of the agreement—the text of the agreement—and the principles in the withdrawal agreement on the backstop. I really hope that the Minister, when he concludes, can give me clarification and reassurance on this matter, but on the face of it, there is a conflict.

Sitting suspended.