Skip to main content

Leaving the European Union

Volume 795: debated on Monday 14 January 2019


My Lords, with the leave of the House I shall now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“With permission, Mr Speaker, I would like to update the House on the further assurances and clarifications we have received from the European Union on the Northern Ireland protocol.

As a proud unionist, I share the concerns of Members who want to ensure that in leaving the European Union we do not undermine the strength of our own union in the UK. That is why, when the EU tried to insist on a protocol that would carve out Northern Ireland from the rest of the UK’s customs territory, I said no. I secured instead a UK-wide temporary customs arrangement, avoiding both a hard border on the island of Ireland and a customs border down the Irish Sea. I also negotiated substantial commitments in the withdrawal agreement and the political declaration to do everything possible to prevent the backstop ever being needed and to ensure that, if it were, it would be a temporary arrangement. But listening to the debate before Christmas, it was clear that we needed to go further, so I returned to Brussels to faithfully and firmly reflect the concerns of this House.

The conclusions of December’s Council went further in addressing our concerns. They included reaffirming the EU’s determination to work speedily to establish, by 31 December 2020, alternative arrangements so that the backstop will not need to be triggered. They underlined that if the backstop were nevertheless to be triggered, it would indeed apply temporarily. They committed that, in such an event, the EU would use its best endeavours to continue to negotiate and conclude as soon as possible a subsequent agreement that would replace the backstop. And they gave a new assurance that negotiations on the future relationship could start immediately after the UK’s withdrawal.

Since the Council, and throughout the Christmas and new year period, I have spoken to a number of European leaders, and there have been further discussions with the EU to seek further assurances alongside the Council conclusions. Today, I have published the outcome of these further discussions, with an exchange of letters between the UK Government and the Presidents of the European Commission and European Council. The letter from President Tusk confirms what I said in the House before Christmas: namely, that the assurances in the European Council conclusions have legal standing in the EU.

My right honourable and learned friend the Attorney-General has also written to me today confirming that, in the light of the joint response from the Presidents of the European Council and the Commission, these conclusions,

‘would have legal force in international law’,

and setting out his opinion, ‘reinforced’ by today’s letter,

‘that the balance of risks favours the conclusion that it is unlikely that the EU will wish to rely on the implementation of the backstop provisions’.

Further, he writes that it is therefore his judgment that,

‘the current draft Withdrawal Agreement now represents the only politically practicable and available means of securing our exit from the European Union’.

I know that some Members would ideally like a unilateral exit mechanism or a hard time limit to the backstop. I explained this to the EU and tested these points in negotiations, but the EU would not agree to this because it fears that such a provision could allow the UK to leave the backstop at any time without any other arrangements in place and require a hard border to be erected between Northern Ireland and Ireland. I have been very clear with the EU that this is not something we would ever countenance—the UK is steadfast in its commitment to the Belfast agreement and would never allow a return to a hard border—but it is not enough simply to say this. Both sides also need to take steps to avoid a hard border when the UK is outside the EU. Failing to do so would place businesses on the island of Ireland in an impossible position, having to choose between costly new checks and procedures that would disrupt their supply chains or breaking the law.

So we have the backstop as a last resort, but both the Taoiseach and I have consistently said that the best way to avoid a hard border is through the future relationship—that is the sustainable solution—and that neither of us wants to use the backstop. So, since the Council, we have been looking at commitments that would ensure we get our future relationship or alternative arrangements in place by the end of the implementation period, so that there will be no need to enter the backstop and no need for any fear that there will be a hard border. That is why, in the first of the further assurances that it has provided today, the EU has committed to begin exploratory talks on the detailed legal provisions of the future relationship as soon as this Parliament has approved the deal and the withdrawal agreement has been signed. The EU has been explicit that this can happen immediately after this House votes through the agreement.

If this House approves the deal tomorrow, it would give us almost two years to complete the next phase of the negotiations, and of course we would have the option to extend the implementation period, if further time were needed, for either one or two years. It is my absolute conviction that we can turn the political declaration into legal text in that time, avoiding the need for the backstop altogether.

These letters also make clear that these talks should give,

‘particular urgency to discussion of ideas, including the use of all available facilitative arrangements and technologies, for replacing the backstop with permanent arrangements’,

and, furthermore, that those arrangements,

‘are not required to replicate’—

the backstop ‘provisions in any respect’. So, contrary to the fears of some honourable Members, the EU will not simply insist that the backstop is the only way to avoid a hard border. It has agreed to discuss technological solutions and any alternative means of delivering on this objective, and to get on with this as a priority in the next phase of negotiations.

Secondly, the EU has now committed to a fast-track process to bring our future trade deal into force once it has been agreed. If there is any delay in ratification, the Commission has now said it will recommend provisionally applying the relevant parts of the agreement, so that we would not need to enter the backstop. Such a provisional application process saved four years on the EU-Korea deal and could prevent any delays in ratification by other member state parliaments from delaying our deal coming into force.

Thirdly, the EU has provided absolute clarity on the explicit linkage between the withdrawal agreement and the political declaration, and made that link clear in the way the documents are presented. I know that some colleagues are worried about an imbalance between the withdrawal agreement and the political declaration, because the EU cannot reach a legal agreement with us on the future relationship until we are a third country, but the link between them means the commitments of one cannot be banked without the commitments of the other. The EU has been clear that they come as a package. Bad faith by either side in negotiating the legal instruments that will deliver the future relationship laid out in the political declaration would be a breach of their legal obligations under the withdrawal agreement.

Fourthly, the exchange of letters confirms that the UK can unilaterally deliver all of the commitments that we made last week to safeguard the interests of the people and businesses of Northern Ireland and their position in our precious union, for it gives clear answers to address some questions that have been raised since the deal was reached—that the deal means no change to the arrangements that underpin north-south co-operation in the Belfast agreement; that Stormont will have a lock on any new laws the EU proposes should be added to the backstop; and that the UK can give a restored Northern Ireland Executive a seat at the table on the joint committee overseeing the deal.

President Juncker says explicitly in his letter that the backstop,

‘would represent a suboptimal trading arrangement for both sides’.

We have spoken at length about why we want to avoid the backstop, but it is not in the EU’s interests either, for this backstop gives the UK tariff-free access to the EU’s market, and it does so with no free movement of people, no financial contribution, no requirement to follow most of the level playing field rules and no need to allow EU boats any access to our waters for fishing. Furthermore, under these arrangements, UK authorities in Northern Ireland would clear goods for release into the EU single market with no further checks or controls. That is unprecedented and means the EU relying on the UK for the functioning of its own market, so the EU will not want this backstop to come into force—and the exchange of letters today makes clear that if it did, the EU would do all it could to bring it to an end as quickly as possible.

Nevertheless, I fully understand that these new assurances still will not go as far as some would like. I recognise that some Members wanted to see changes to the withdrawal agreement, a unilateral exit mechanism from the backstop, an end date or rejecting the backstop altogether, although it should be said that that would have risked other EU member states attempting to row back on the significant wins we have already achieved, such as on control over our waters or on the sovereignty of Gibraltar. But the simple truth is this: the EU was not prepared to agree to this, and rejecting the backstop altogether means no deal. Whatever version of the future relationship you might want to see—from Norway to Canada, to any number of variations—all of them would require a withdrawal agreement and any withdrawal agreement would contain a backstop. That is not going to change, however the House votes tomorrow. To those who think we should reject this deal in favour of no deal because we cannot get every assurance we want, I ask: what would a no-deal Brexit do to strengthen the hand of those campaigning for Scottish independence—or, indeed, those demanding a border poll in Northern Ireland? Surely that is the real threat to our union.

With just 74 days until 29 March, the consequences of voting against this deal tomorrow are becoming ever clearer. With no deal, we would have no implementation period, no security partnership, no guarantees for UK citizens overseas, and no certainty for businesses and workers such as those I met in Stoke this morning. We would see changes to everyday life in Northern Ireland that would put the future of our union at risk. And if, rather than leaving with no deal, this House blocked Brexit, that would be a subversion of our democracy, saying to the people we were elected to serve that we were unwilling to do what they had instructed.

So I say to Members on all sides of this House—whatever you may have previously concluded—over these next 24 hours, give this deal a second look. No, it is not perfect. And yes, it is a compromise. But when the history books are written, people will look at the decision of this House tomorrow and ask: did we deliver on the country’s vote to leave the European Union? Did we safeguard our economy, our security and our union? Or did we let the British people down? I say we should deliver for the British people and get on with building a brighter future for our country by backing this deal tomorrow. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the Leader for repeating the Statement. The Prime Minister so often tells us that nothing has changed. As the clock continues to run down to 29 March, it is worth reminding ourselves that, while Mrs May’s red lines have not shifted—with tragically predictable results—plenty of other things have. We were told that there would be no “running commentary” on the Brexit talks, as that would undermine the national interest, yet a prime ministerial EU statement has become an almost weekly event. We were told that “Brexit means Brexit”, but, even now, the Government still have not got an agreed definition. And we were told that,

“no deal is better than a bad deal”,

yet the Prime Minister has warned MPs that voting against her deal, as we heard just now, risks the UK crashing out without a deal—which, she finally acknowledges, “would cause significant disruption”. We know that it would be catastrophic.

However, there is one area where nothing has changed. As the Leader said, today we were given the opportunity to read an exchange of letters between the Prime Minister, President Juncker and President Tusk. What did we find out? First, that the backstop is still a backstop; and, secondly, that documents continue to have the legal status they have always had. The Prime Minister promised to obtain legally binding changes to the deal, in order to address the concerns of her Back-Benchers and the DUP. The advice of her Attorney-General shows that she has failed. He confirms that, though the December Council conclusions have legal standing,

“they do not alter the fundamental meanings of”,

the provisions of the Northern Ireland protocol. He is clear that today’s letter from the EU is only useful in terms of making a “political”—a political, not a legal—

“judgment as to the likelihood of the backstop coming into force”.

I have two questions for the Leader of the House. Does she accept, as it says in the letter, that the backstop remains,

“unless and until it is superseded by a subsequent agreement”?

Does she agree that that comment, in the letter from Tusk and Juncker, is accurate? Secondly, more than a month has now passed since the first meaningful vote was pulled. Does the Leader of the House really believe that it has been worth the wait?

My Lords, I would like to thank the Leader for repeating the Statement. I was happy to have the Statement repeated, on the basis that it might contain something new—which speakers in our debate might wish to take into account in their subsequent speeches. However, it is now obvious that the Prime Minister’s Statement says nothing new of substance whatsoever and therefore I do not intend to delay the debate further by commenting on it. I hope that, on that basis, other noble Lords will curb their enthusiasm for asking questions, so that we can get back to the debate as soon as possible.

I thank the noble Baroness and noble Lord for their brief comments. I shall attempt to keep my comments brief, too. I will quote a couple of elements of the Attorney General’s advice, as the noble Baroness did. The Attorney-General says in his letter today:

“I agree that in the light of this response, the Council’s conclusions of 13 December 2018 would have legal force in international law and thus be relevant and cognisable in the interpretation of the Withdrawal Agreement”.

He says also that, in his judgment,

“the current draft Withdrawal Agreement now represents the only politically practicable”,

but also the only,

“available means of securing our exit from the European Union”.

The letter also makes clear that there are alternatives to the backstop that can be considered. Therefore, progress has been made and there have been further reassurances from the EU. As the Statement makes very clear, the Prime Minister is well aware that those may not satisfy everyone, but progress has been made.

My Lords, if the House of Commons rejects the deal tomorrow, as seems very probable, would my noble friend agree that any consequential outcome other than crashing out without a deal—which seems to be an outcome that has no parliamentary majority—will require more time? In those circumstances, would she agree that, in the event of the deal being rejected tomorrow by the House of Commons, urgent steps will be taken to persuade the European 27 to extend the exit date—or, if that is not possible, to revoke Article 50?

We have been clear that it is not our policy to withdraw or revoke Article 50. However, the Prime Minister has been very clear that we are focusing on winning the vote tomorrow. Our intention has always been to respond quickly and provide certainty on the way forward in the event that tomorrow’s vote does not pass, both in terms of setting out our next steps and any subsequent vote, and that is what we will do.

My Lords, the Prime Minister says:

“With no deal we would have no implementation period, no security partnership, no guarantees for UK citizens overseas, and no certainty for businesses and workers”.

In those circumstances, why does she not rule out no deal?

The noble Lord will be aware that in the current situation no deal is the default position if a deal is not agreed. We are having a vote tomorrow, with a good deal on the table for a strong relationship between the UK and the EU. It is the only deal the EU says is on the table. That is why the Prime Minister and all colleagues are working hard to make sure that the deal passes. We do not want no deal. There is a deal on the table. I urge MPs to vote for it.

My Lords, is my noble friend aware—she probably is not—that this morning I visited an exhibition which contained a book that included Dante’s “Map of Hell”, and that it bore a strong resemblance to the present state of the other place? Does she not agree that in the period of paralysis that seems to exist in the other place, the real emphasis needs to be on showing that the withdrawal agreement is only a step-by-step part of a very long process? It took us 45 years to become entangled with the European Union, and it is bound to take us years to fully disentangle ourselves without doing immense damage to our economy. So will she advise her friends to put more emphasis on the fact that this is a journey? It is a beginning, there are many difficulties and opportunities ahead, and it is step by step. Those who think that we can with one leap be free are showing that they are long on opinion but very short on experience.

My Lords, to what extent will any delay be held hostage by the changing political face on the continent, including any changes in the Commission?

As I have said, I am not going to prejudge what will happen in the House of Commons tomorrow. I am not in a position to do so. We will be working hard to win the vote so that we can deliver on the result of the referendum and implement a strong partnership between the EU and the UK going forward, and a withdrawal agreement that will ensure a smooth exit from the EU.

My Lords, I do not often agree with the leader of the Lib Dems in this House, but I have to say that the Statement is hardly worth commenting on. Nothing has changed. Despite letters of reassurance from the European Union, there are no legally binding assurances, as the Prime Minister talked about and promised in December. In fact, nothing has changed. We have often said as a party that we want a balanced and fair approach to leaving the European Union. Unfortunately in this situation, we have also said continually that we will not support anything that separates Northern Ireland from the rest of this United Kingdom. That has been our message continually, both in this House and to the Prime Minister. So as far as we as a party in this House are concerned, nothing has changed.

I am sorry that that is the view of the noble Lord. The exchange of letters does set out four key assurances. We believe that progress has been made. I repeat, as we have repeated constantly over the past few months, that neither the UK nor the EU wants the backstop to happen. It is an insurance policy. We and the EU have been very clear that there are alternatives to the backstop, and the House of Commons will be given a chance to discuss those if we do not have our future relationship in place—which we are all working hard to do and which the EU has committed again in these letters to work towards.

The Leader of the House has suggested that the biggest threat to the unity of the United Kingdom would be to have a second referendum. Will she reflect on the fact that actually the biggest threat to the United Kingdom would be if the Government were to create the circumstances in which those who wished to break up the United Kingdom were better placed to win such a referendum, particularly if the Government followed a course of action that was opposed by the people of Scotland and the people of Northern Ireland? Does she recall that there is a thing called unintended consequences? However much the Government wish—as we in this House wish—to retain the unity of the United Kingdom, they are in grave danger of creating circumstances in which, if a referendum is held in other parts of the UK, that unity may be put under threat.

The noble Lord is right—which is exactly why the Prime Minister has been working constantly and hard to get a deal on the table that both preserves the unity of the UK and allows us a strong relationship with the EU. That is the deal that is on the table. We are now asking MPs to vote for that deal so that we can move forward and start focusing on the strong future relationship with the EU that we want so that we can develop that partnership.

My Lords, on the subject of the threat to the United Kingdom, does my noble friend recall that the party with the biggest percentage of its supporters voting for Brexit was the Scottish National Party? The threat to the United Kingdom comes from this deal, which purports to allow one part of the United Kingdom to be treated differently by Brussels from the rest. My noble friend talks about the need for the backstop and for this deal because of the need to avoid a hard border. The Irish Government have said that they do not want a hard border and would never implement one; the Commission has said that it does not want a hard border and would never implement one; and the Government have said that they do not want a hard border and would never implement one. So who exactly is going to implement this hard border?

I thank my noble friend. As the Statement makes clear, the backstop is an insurance policy. None of us has an intention to use it and so we have found other mechanisms. If we do not get the future relationship in place by the end of December 2020, which is what we all want, the EU has made it very clear that we need an insurance policy to make sure that what we all agree that we do not want—a hard border—cannot and does not happen. My noble friend will understand that on 30 March Brexit will create a wholly new situation, which is that for the first time the Northern Ireland/Ireland border will become an external frontier of the EU’s single market and customs union. This poses significant challenges which we are attempting to address.

My Lords, in expressing the hope that the other place will endorse the Prime Minister’s deal, I revert to the point made by my noble friend Lord Hailsham. If the House of Commons does not approve this deal tomorrow, it will be utterly impossible to deliver on a March deadline.

As I have said, I am not prejudging the outcome of tomorrow’s vote. I have also said that it has always been our intention to respond quickly and provide certainty if the vote is lost, and that is what we will do about our next steps.

My Lords, if my noble friend Lord Hailsham is right and the House of Commons votes down the deal tomorrow, the default position is no deal. Does my noble friend accept that no deal is much more damaging to the EU than it is to us and, in addition, that we would not pay it £39 billion? Does she not expect really quite major concessions from the EU at the last minute—the 11th hour—possibly way into March?

I can only reiterate what I have said to noble Lords on many occasions. We believe that this is a good deal. We want MPs to vote for that deal. That is what we will continue to work towards. If the vote is lost tomorrow, we will return with our next steps.

My Lords, the backstop fundamentally undermines Northern Ireland’s position in the United Kingdom and runs contrary to the principles of consent contained in the Belfast agreement. When the Prime Minister delayed the vote in December, she said that she was going to get legally binding assurances. Does the Leader of the House agree that this letter is certainly not legally binding?

My Lords, on that point, is it not clear that the Attorney-General’s letter is a political letter? It is about the political risk—it says that the balance of political risk is in this way. But, on the legality of the backstop, the Leader did not refer to the fact that the Attorney-General wrote in his letter that,

“they do not alter the fundamental meanings of its provisions as I advised them to be on 13 November 2018”.

In other words, what has been obtained has no legal effect.

The letter does say that, but it also says that,

“the Council’s conclusions of 13 December 2018 would have legal force in international law and thus be relevant and cognisable in the interpretation of the Withdrawal Agreement”.

Will the Leader of the House confirm the veracity of what my noble friend Lord Howard said in our debate before Christmas: namely, that we have an unfettered right to leave the European Union under Article 50 but that we need the agreement of the other member states to leave the backstop?

As we have made very clear, neither the EU nor the UK wants the backstop. We do not want to go into it. The letter reiterates once again other mechanisms such as looking at facilitative technology and extending the implementation period. Other options may be available. Parliament will be given the right to discuss and vote on the option it wants if we need it—but we are committed to implementing the future relationship by the end of December 2020 so that none of those situations comes to pass. We will focus on that.

My Lords, on the issue of legal force, referred to in the Attorney-General’s letter, has either the EU or Her Majesty’s Government sought an advisory opinion from the European Court?

My Lords, the Statement uses the term “temporary” a great deal. Noble Lords will be aware that income tax was introduced as a temporary measure in 1799—and I still live in hope. Returning to the question asked by my noble friend Lord Forsyth of Drumlean, neither we nor the Irish want a hard border, and apparently the European Union does not want one, either—so who will erect this hard border if the Prime Minister’s tireless efforts do not bear fruit tomorrow? I want to know in which direction to point my tanks. Nobody wants an Irish border.

The noble Lord is right that absolutely nobody wants a hard border in Ireland, but the EU has been consistently clear in discussions that it wants an insurance policy. We have been consistently clear that we want to abide by the Good Friday/Belfast agreement. As we have said, the backstop is an insurance policy that none of us wishes to use. As has been stated by the EU and ourselves, we will use our best endeavours and work in good faith to make sure that that does not happen.

My Lords, I welcome the Statement read by the Leader of the House. My question is simple: I know that there is another 24 hours to go, but what steps do the Government intend to give the other place? At the moment, the EU sees us as part of it. The difficulty of negotiating from within is that we cannot give anything away until we have left. The EU has a very legalistic view of what it is to be a member. What will the Government do to explain that this creates a difficulty?

Furthermore, what assurances will the Government give to create better trust between our four nations and the European Union? At the moment, as I heard in the debate, it sounds as though we have not taken on board the fact that this is purely about getting out, beginning negotiations and setting the parameters of the future conversation. What will the Government do to get it across that this is not ultimately about the final deal?

That is absolutely correct. Until now, we have been talking largely about the withdrawal agreement and the divorce settlement. In the letter published today, one assurance is that the EU has committed to beginning discussions straightaway on a fast-track process to bring our future trade deal into force once it has been agreed. It has also made an explicit link between the withdrawal agreement and the political declaration, which sets out the parameters of our future relationship. So if the vote is won tomorrow, we can move on to the next stage—which, frankly, is what the British people want us to do.

My Lords, although nobody wants a hard border between Northern Ireland and the Republic, is it not the case that if we leave without any deal whatever, there will automatically be a hard border?

As we have said, we are working hard to get the deal through for that exact reason. No deal would create issues in Ireland, which is why we have been working so hard to ensure that we can move forward. Tomorrow, the Prime Minister will make the case in the Commons once again for people to support the deal so that we can move on to the future relationship and the strong partnership we want between the UK and the EU.

My Lords, can the Minister help the House by describing the implications of the most favoured nation provisions of the World Trade Organization—of which both we and the European Union are members—which do not permit us to not charge tariffs on any border with a country with which we are not in a free trade or customs union relationship at the time? If she explained that, it would answer quite a lot of the questions that have been asked.

We do believe that we can do better than trading under WTO rules, which would mean tariffs and quotas on British goods going to the EU. For instance, trading on WTO rules would mean a 10% tariff on cars we sold to the EU and average tariffs of more than 35% on dairy products. That is why we are focused on achieving a broader, deeper and stronger economic partnership with the EU—a result flowing from the political declaration if the deal is passed tomorrow.

My Lords, a hard border is defined as a situation where the conditions for going one way are different from the conditions for going the other way. That can happen without anybody wanting it if they wish to have different conditions. Therefore, the point of this is to ensure that future arrangements at the Irish border will be such that the conditions are the same whether you are going from north to south or from south to north.

I agree entirely with my noble and learned friend. We do not want a hard border between Ireland and Northern Ireland, which is why we urge MPs to support the deal.

My Lords, is it not right for the European Union to want to protect its borders after Brexit? Did it not put the backstop in place because the Prime Minister had failed to find an alternative?

No. As we have said, both the EU and the UK have made it clear that other alternatives are on the table, such as an extension of the implementation period or technological developments. We have both committed to getting our future relationship agreed by the end of December 2020, which will mean that neither the backstop nor any of the other options will be needed. The EU and the UK have both made it clear that they want to avoid a backstop, which is why we have other options on the table. We need to get the withdrawal agreement agreed so that we can move forward and look towards our future relationship. We want to look to the future, not backwards.

My Lords, the Leader told the House that nobody wants the backstop, but the EU is demanding that the backstop be put in place as an insurance policy. Surely then the EU’s purpose is to hold the backstop as a threat over the head of the United Kingdom to ensure compliance with EU demands in further negotiations.

I do not agree. The backstop we have negotiated gives the UK tariff-free access to the EU market without the free movement of people, without financial contributions, without having to follow most of the level playing-field rules and without allowing the EU to have access to our waters. That is not something that the EU wants.

My Lords, have the Government read the paper published yesterday by Economists for Free Trade entitled “No deal is the best deal for Britain”? If not, will they do so and answer it publicly? Clearly, the scare stories that have been put around about what will happen if there is no deal are complete nonsense, to put it mildly.

I can only reiterate that we believe that there is a good deal on the table, which MPs will vote on tomorrow. I hope that they support it so that we can move forward.