I feel in a very lonely position this evening. I have tried hard to be persuaded by the arguments of the remainers, but my head and my heart will not go that way.
What has been the role of this House in the Brexit process for the past two years? I think the history books will not look upon us favourably. It is true that we have played our traditional constructive part in amending legislation, but our collective wisdom should have offered more inclusive solutions than has been the case. Instead, the great majority of our members have tried to belittle the sentiments of those who voted leave. Repeatedly, we have been told that people did not vote to make themselves poorer. That sentiment reveals nothing about the leavers, but it does show that remainers see the issues through an economic perspective only, and that retaining and protecting one’s investments are the only possible values. This should not be so.
It is not only in this country that voters have seen the profound failings of the EU, and are trying to stem the flow of those failures into their own lives. Right across Europe the populist and nationalist movements are on the rise. Southern states are left to stagnate, with recession and youth unemployment. The former Communist states are rejecting the orders from Brussels about borders, environment and migrants. Minorities are in fear for their lives. Germany alone benefits economically, although even that is stalling.
The wealthier EU states do not help the poorer: they leave them to flounder. There are no shared values anymore. On the contrary, human rights are being devalued as never before since the end of the Second World War. The central Government in Brussels grow ever more distant from those they purport to govern. France is in the grip of riots. The German AfD has representatives in the Reichstag. Hungary, Italy, Austria, the Czech Republic, Estonia, Sweden, the Netherlands and Poland now have the far right well represented in government. No wonder the EU is fearful for the elections in May, which are likely to increase the representation of extremists.
Leavers have rejected, in a once-in-a-generation opportunity, the failings of past empires, whether Austro-Hungarian, British, Roman, the Soviet Union’s, Yugoslavian, American, French or Ottoman. Starting with the best of intentions of bringing security and peace to disparate peoples, they inevitably brought repression and diktats as soon as local preferences were expressed. The EU is simply a return to Europe’s imperial past, and it is not even able to defend itself but is reliant on NATO and in thrall to Russia.
This top-down governance lacks the elements of loyalty and shared burdens that characterise national states. Over the decades since 1945, these states have spent more and more of their budgets on helping their own citizens in times of hardship, and yet somehow those who benefit from the EU have managed to create a mindset that sees the union of European states as the only legitimate liberal opinion that one may hold. Voting leave was described as an unforgivable act of dissent. It had to be described as a protest vote, a vote by the uneducated and aged and a vote that has to be repressed.
What is going on now to stop leave is another manifestation of the intolerance that faces political and religious speech regarded as deviating from the acceptable view. This is where the hatred and bigotry arise again, against those who do not accept the universalist ideologies, or as a reaction to legitimate national expression being put down. Individual freedom throughout history has been better protected in independent states than in conglomerations. In short, as the EU undermines national loyalty, it creates a fertile soil for extremism and hatred. Democracy cannot flourish eventually in a superstate, as history has shown. It is therefore legitimate and far sighted to seek to retain our independent democracy and not risk further exposure to the forces that may yet bring an end to the latest dream of empire.
What advice can we give our colleagues in the other place? Certainly not to take control themselves. Not only is that a constitutional outrage and a very dangerous precedent for future majority governments, but there is no clear majority in the Commons for any particular path. It is not possible for the EU 27 to deal with the Commons—or will they be represented by Speaker Bercow? One begins to see why there is sense in the royal prerogative in dealing with foreign affairs, as was almost universally understood until the Supreme Court judgment in Miller concerning Article 50. Moreover, one can be sure that were MPs to come up with one solution commanding a majority and present it to Brussels, it would be turned down, for the clear aim of the EU has been from the outset to prevent our leaving, or make it so unpleasant that no other state will ever dare to rebel against the centralised powers. We did not vote to be humiliated, but that is what has happened, and we should never again entrust our sovereignty to other states. That is the lesson.
We are left with three outcomes: revoking Article 50 and/or a second referendum, no deal and the May deal. Revocation would have no democratic basis. On the contrary, it would be a betrayal of the universal franchise and especially the democratic rights of the public. It would be a disfranchisement by those who consider themselves best able to govern of those for whom they are expressing contempt, an attitude that should have ended more than 100 years ago. A second referendum would quite likely, in my view, be won by leave again, on the basis of not wanting to be bullied. Moreover, given the accusations of ignorance last time, are we certain that all the electorate are on top of the backstop and all the other provisions of the agreement? If leave won again, we would have the same practical problems. If remain won, that result would be rejected with the same strength as leave is rejected now.
What about no deal? Despite the Prime Minister’s statement, I maintain that legally it is still on the table. Unless Parliament changes primary legislation, it is still there. None the less, despite the allegations of chaos, I believe we are more prepared for the logic of no deal than is generally put about. No deal—that is, trading under WTO terms—is what we may well get on
What, then, of the Prime Minister’s deal? The withdrawal agreement is not a treaty for all time. The weight of legal opinion, which is at least sufficient to defend a legal challenge, is that Articles 60 and 62 of the Vienna Convention on the Law of Treaties allow termination of a treaty for a material breach by one side of its obligations or a fundamental change of circumstances. For once, I have my pupil, more brilliant than I, the noble Lord, Lord Pannick, on my side. Should the UK come to the conclusion that the EU was keeping it locked in a backstop unreasonably, it could claim a material breach of the withdrawal agreement. Both parties will be obliged to work towards a specific result— namely, to conclude an agreement that supersedes the protocol by the end of 2020. Unreasonable delays by the EU, or negotiating in a manner that does not take account of the objectives of the UK would be a breach of the principle of good faith.
A permanent backstop would undermine the Good Friday agreement. If the EU threatened that, it would be inconsistent with its best endeavours and good-faith duties. If the backstop became permanent by default, without the consent of the people of Northern Ireland, this would amount to a fundamental change of circumstances under Article 62. Article 1(4) of the protocol expressly states that the withdrawal agreement is meant to be temporary. If it became permanent, this would be a fundamental change, and the longer it continues, and the worse the consequences for Northern Ireland, the stronger the legal argument that Article 62 would apply. The UK has withdrawn unilaterally from 52 treaties since 1988. All these were multilateral treaties. We cannot, therefore, be bound permanently in international law by an agreement if one of its terms is that it does not establish a permanent relationship and is meant to be temporary. The fears surrounding this are ill founded.
Bad though the May agreement is, if I were an MP I would probably hold my nose and vote for it. I urge the other House to pass this deal. If it does not, the plans of the venal and the apparatchiks in Brussels are to delay Brexit for year after year until it vanishes, and there will be no escape from the downward spiral of the EU. Brexit is within our grasp—just a few more votes, and we have it. Otherwise, it is gone for ever, with our sovereignty and our respect for individual freedoms.