Contribution to European Union (Withdrawal) Bill, House of Lords, 21 February 2018

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My Lords, having added my name to the amendments in the name of my noble friend Lord Adonis, I want to explain that they are designed to give back to Parliament control of when the European Communities Act 1972 is repealed and to strengthen the effect of the amended Clause 9(1), which was designed to give Parliament a meaningful vote on the final terms of withdrawal and which required that a new statute be put in place before any regulations are made to implement the withdrawal agreement.

I do not need to remind your Lordships’ House that what is at stake is more than a matter of process or procedure. It is ultimately about whether either Parliament or a group of hard Brexiteers who are trying to manipulate the Government will decide the future of the people of this country. What is at stake is people’s jobs and standards of living, which depend on our trading relationships; the protection of labour rights and environmental standards; the alliances on which Britain’s future security depends; and the future of the Good Friday agreement, which has brought peace and stability to the island of Ireland for generations to come but is itself now under attack from assorted Brextremists—including, astonishingly and recklessly, a former Secretary of State, Owen Paterson, who should know a great deal better. It is reckless and downright dangerous to put Brexit dogma before peace and stability on the island of Ireland.

As noble Lords will be aware, the notification of the UK’s intention to withdraw from the European Union under Article 50(2) of the Treaty on European Union was served by the Prime Minister on 29 March 2017. Article 50(3) provides:

“The Treaties shall cease to apply to the State in question”—

in this case, us—

“from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.

Therefore, Article 50 in its entirety means something quite contrary to the widespread impression, often reinforced by Ministers, that there can be no flexibility about exit day. As the noble Lord, Lord Kerr, the author of Article 50, has made it clear, the article contains provision for a possible extension of the period if that is needed to come to an agreement.

The main purpose of our amendments is therefore to give Parliament rather than Ministers the power to control the UK’s position on the date of exit day. By specifying that the European Communities Act 1972 can be repealed only on a date to be determined either by a further Act of Parliament or in the Act of Parliament enacted for the purposes of Clause 9(1), Amendments 2 and 3 support the amended Clause 9(1) by ensuring that Parliament stays in control of the timing of exit day under Article 50, and is thereby in a position to influence the withdrawal agreement and its provisions for the framework of the future relationship between the UK and the EU.

Our amendments are of particular importance in view of the earlier government amendments to Clause 14, moved on the final day in Committee in the other place, which gave Ministers power to fix the date of exit day. In their initial draft of the Bill, the Government were apparently satisfied that, for the purposes of the Bill, the date of exit day could be left to Parliament. Then, for what appear to be purely internal party factional reasons, the Government introduced an amendment to fix exit day in the Bill for 29 March 2019 at 11 pm for all purposes. The Government also supported amendments by Oliver Letwin which allowed the date to be changed by Ministers if the withdrawal agreement provides that the UK will leave on a date different from that set out in Clause 14.

I trust that your Lordships’ House will agree that Parliament rather than Ministers should be in control of the process. However, the government-supported amendments in the other place allow the date to be changed only by Ministers, not by Parliament, even if Parliament has a different view to that of the Executive. In addition, this could happen only if an alternative date on which the treaties ceased to apply to the UK was included in the withdrawal agreement—that is, only if Ministers agreed an alternative date with the EU.

Under the Bill, Ministers would in these circumstances therefore be able to use secondary legislation to change the date in UK legislation as well, thereby bypassing Parliament. Surely, that is completely unacceptable on a matter of such crucial historical importance. Therefore, there are a number of important and worrying implications of the government and government-supported amendments approved in the other place, which can be overcome by the amendments that my noble friend Lord Adonis has tabled, giving Parliament control over the date when the European Communities Act 1972 can be repealed, thus forcing the Government, if necessary, to go back into the negotiations with the EU under Article 50(2).

One example, as the former Attorney-General, Dominic Grieve, made clear in the other place, is that it was always the intention behind his amendment to Clause 9, which the other place voted for, that the powers in the Bill for implementing the withdrawal agreement, including fixing the withdrawal date, should not be used until after the final statute had been approved by Parliament. However, because of the government-sponsored amendments referred to earlier, those powers for Parliament in relation to the date of exit day are effectively removed from the scope of Clause 9, the other place having voted for that amended Clause 9. This could conceivably mean, for instance, that, given the first-phase agreement of December 2017 stating that,

“nothing is agreed until everything is agreed”,

if negotiations were deemed to have failed, the date of exit could be made earlier than 29 March 2019, thereby pre-empting Parliament’s consideration and implementation of a statute approving exit. As things stand, if there is no withdrawal deal, Parliament will be bypassed without any right to a vote. The Government’s amendments relating to the date of exit day have therefore been seen by some as potentially paving the way for a pre-emptive no deal—a so-called “hard Brexit”—by hard-line Brexiteers.

Another potential outcome of leaving the power to change the date of exit day in the hands of Ministers only is that this could be used by them to fail to pursue issues where Parliament wishes to see progress in the negotiations, on the grounds that they do not need Parliament’s support for Brexit in order for them to proceed on the pre-determined date. By the time any such vote comes on the withdrawal agreement, perhaps as soon as the end of this year, it could be difficult, if not impossible, to make substantive changes to the outcome. Neither the EU Commission, nor the member states, will be keen to renegotiate it. The European Parliament has its own agenda, and it seems highly likely that the choice facing the UK Parliament, as a result of Theresa May’s premature triggering of Article 50, would in these circumstances be to either accept the terms or reject them, with no leverage to force the Government back into renegotiations, so risking precipitating the UK crashing out of the EU with no deal. Surely, it is incumbent upon both Houses of Parliament to prevent this scenario by ensuring that Ministers are obliged to refer back to Parliament during the negotiations to ensure they win the ensuing vote.

Another danger is that the transition period, which the Prime Minister has inappropriately referred to as the implementation period, and which Labour, with the support of the CBI and the TUC, has advocated, could be at risk in the negotiations if Ministers alone control of the date of exit day. This transition period is necessary to prevent a so-called “cliff edge”, involving a legal and regulatory void, with chaos resulting for our businesses and services and gridlock at our borders after exit day. A transition period covering as many years as necessary would also ensure that exporters would not have to adapt to two new customs and regulatory arrangements in succession by first dropping out of the EU framework and falling back on the totally inadequate WTO rules and then later, possibly much later, becoming part of arrangements negotiated as part of a comprehensive trade deal with the 27 countries of the EU, which currently take almost half of our exports.

In addition, even if a transition period is agreed, the UK will drop out of the over 60 trade deals with “third countries” which we have access to through our membership of the EU. However, it appears that the Government’s concept of “on current terms” in the transition period excludes the European Court of Justice from its role in arbitrating commercial and other disputes. This is one effect of those government amendments relating to exit day, which would potentially end the jurisdiction of the ECJ on 29 March 2019, thereby preventing agreement on a transitional period “on current terms”. The UK also apparently wants to object to the application of new EU laws and to treat European citizens who come to this country differently during the transition period. All this makes it less likely that a transition period will be agreed in detail at the next EU summit, just weeks away on 22 March, in which case discussions will not move on to a framework for the future relationship. There are, therefore, now fears that the talks on the next phase, the post-transition end state, including the outline of a future trade deal, will have to be delayed, casting the whole timetable into doubt. The more things are delayed, the greater the danger that the EU will simply impose a very narrowly drawn trade deal on the UK or, worse still, the UK might crash out without a deal, to the evident glee of Brextremists such as Jacob Rees-Mogg.

Many people have imagined that the text of Article 50(2) of the Treaty on European Union—and I speak with some trepidation, given that its author, the noble Lord, Lord Kerr, sits opposite me—implies that any withdrawal agreement will constitute a new trade deal with the EU. It does not. However, anyone familiar with major trade deals knows that they reflect the judgment by states of what will be in their own interests and the relative economic power and weight of the parties involved, and that they take years to negotiate. That is presumably why the noble Lord, Lord Bridges of Headley, a former and very recent Minister for Exiting the European Union, said that he did not believe that it would be possible to sort out the divorce bill, the implementation period and the final deal on our withdrawal within the timeframe envisaged. It is therefore completely unrealistic to imagine that the detail of a new trade agreement with the EU will be finalised before the specified exit day or even before the end of the transition period, assuming one is agreed, which, for reasons relating to its budget period, is currently being set by the EU for the end of 2020.

The Dominic Grieve amendment to this Bill, carried in the other place, makes implementation of the withdrawal agreement subject to parliamentary approval. But all that is likely to be agreed by October this year, the deadline for giving time for consideration and ratification by the European Parliament and the other 27 member states of the EU, is just what the treaty states; that is, a,

“framework for its future relationship”,

with little flesh on the bones, which may therefore fall very short of the guarantees which I believe that a majority both Houses of Parliament wish to see: namely, access in the future to EU markets equivalent to what the UK has now to prevent a “cliff edge” for businesses and services and to protect the hard-won benefits of the Good Friday agreement and a completely open border on the island of Ireland.

The Irish question is a crucial reason for Parliament being in charge of the exit date. The serious near-breakdown in the December negotiations between the UK and the EU was eventually resolved only through both sides pledging no regulatory divergence between the Irish Republic and the UK. However, although this cleared the way for the next phase of the Brexit talks, the task of giving it legal effect in the withdrawal agreement remains. Brussels has asked for “precise, clear and unambiguous” proposals to avoid reimposing a hard border between the Republic and Northern Ireland, linking this to progress on transition. Brussels and most dogma-free analysts interpret this December agreement to require the whole of the UK to remain in the single market and customs union, or its exact arrangements, if there is not to be “regulatory divergence” between the Irish Republic and the rest of the UK. Yet the Prime Minister has dogmatically excluded that. It is in everyone’s interest, surely, including the DUP’s, that the exit date is not set in concrete, as it is in this Bill, giving sufficient time both to find a solution on the Irish border and, as the CBI and the TUC have argued, the economy.

Parliament should not be asked passively to sanction a transition to an unknown destination by Ministers—what could be a suicidal leap into a chasm of chaos and uncertainty. We surely have a duty to ensure that, if no deal is struck, or the terms of such a deal are deemed inadequate by Parliament, the provisions of the European Communities Act 1972 continue in force and the timing of exit day will be delayed in order that these critical issues for the nation’s future are properly addressed. The purpose of Amendments 2 and 3 is that, on the precise date of Brexit, Parliament—not Ministers—should have the final say on our country’s destiny and on whether any deal either preserves or threatens peace and stability on the island of Ireland.

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