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European Council

Volume 796: debated on Monday 25 March 2019


My Lords, with the leave of the House, I will 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 make a Statement on last week’s European Council.

Before the Council, I wrote to President Tusk to seek formal approval for the legally binding assurances on the Northern Ireland backstop and alternative arrangements agreed in Strasbourg on 11 March. I reported your Statement, Mr Speaker, which made it clear that, for a further meaningful vote to take place, the deal would have to be,

‘fundamentally different—not different in terms of wording, but different in terms of substance’.—[Official Report, Commons, 18/3/19; col. 781.]

I explained that, as a result, some honourable and right honourable Members were seeking further changes to the withdrawal agreement, and I requested a short extension to the Article 50 process to 30 June. I regret having to do so. I wanted to deliver Brexit on 29 March, but I am conscious of my duties as Prime Minister to all parts of our United Kingdom and of the damage to that union that leaving without a deal could do when one part of it is without devolved government and unable therefore to prepare properly.

The Council formally endorsed the legal instrument relating to the withdrawal agreement and the joint statement supplementing the political declaration. This should increase the confidence of the House that the backstop is unlikely ever to be used and will be only temporary if it is. But the Council also reiterated, once again, its longstanding position that there could be no reopening of the withdrawal agreement. So, however the House decides to proceed this week, everyone should be absolutely clear that changing the withdrawal agreement is simply not an option.

Turning to extending Article 50, this has always required the unanimous agreement of the other 27 member states. As I have made clear before, it was never guaranteed that the EU would agree to an extension or the terms on which we requested it, and it did not. Instead, the Council agreed that, if the House approves the withdrawal agreement this week, our departure will be extended to 11 pm on 22 May. This will allow time for Parliament to pass the withdrawal agreement Bill, which is legally necessary for the deal to be ratified. But if the House does not approve the withdrawal agreement this week, our departure will instead be extended only to 11 pm on 12 April. At this point, we would either leave with no deal or we would,

‘indicate a way forward before this date for consideration by the European Council’.

If this involved a further extension, it would certainly mean participation in the European parliamentary elections.

The Council’s conclusions were subsequently turned into a legal decision, with which the UK agreed, and which came into force last Friday. So, while the Government have today laid a statutory instrument, which will be debated later this week, to reflect this in domestic legislation, the date for our departure from the EU has now changed in international law. Were the House not to pass the statutory instrument, it would cause legal confusion and damaging uncertainty, but it would not have any effect on the date of our exit.

I continue to believe that the right path forward is for the United Kingdom to leave the EU as soon as possible with a deal—now, on 22 May—but it is with great regret that I have had to conclude that, as things stand, there is still not sufficient support in the House to bring back the deal for a third meaningful vote. I continue to have discussions with colleagues across the House to build support so that we can bring the vote forward this week and guarantee Brexit. If we cannot, the Government made a commitment that we would work across the House to find a majority on a way forward.

The amendment in the name of my right honourable friend the Member for West Dorset seeks to provide for this process by taking control of the Order Paper. I continue to believe that doing so would be an unwelcome precedent to set, which would overturn the balance of our democratic institutions. So the Government will oppose this amendment this evening but, in order to fulfil our commitments to this House, would seek to provide government time in order for this process to proceed. It would be for this House to put forward options for consideration, and to determine the procedure by which they wished to do so.

But I must confess that I am sceptical about such a process of indicative votes. When we have tried this kind of thing in the past, it has produced contradictory outcomes or no outcome at all. There is a further risk when it comes to Brexit, as the UK is only one half of the equation and the votes could lead to an outcome that is unnegotiable with the EU. No Government could give a blank cheque to commit to an outcome without knowing what it is. So I cannot commit the Government to delivering the outcome of any votes held by this House, but I do commit to engaging constructively with this process.

There are many different views on the way forward, but I want to explain the options as I understand them. The default outcome continues to be to leave with no deal. But this House has previously expressed its opposition to that path, and may very well do so again this week. The alternative is to pursue a different form of Brexit or a second referendum. But the bottom line remains: if the House does not approve the withdrawal agreement this week and is not prepared to countenance leaving without a deal, we will have to seek a longer extension. This would entail the UK having to hold European elections, and it would mean that we will not have been able to guarantee Brexit. These are now choices that the House will have the opportunity to express its view on.

Mr Speaker, this is the first chance I have had to address the House since my remarks last Wednesday evening. I expressed my frustration with our collective failure to take a decision, but I know that many Members across this House are frustrated too. We all have difficult jobs to do. People on all sides of the debate hold passionate views and I respect those differences. I would also like to thank all those colleagues who have supported the deal so far, and those who have taken the time to meet with me to discuss their concerns.

I hope we can all agree that we are now at the moment of decision. In doing so, we must confront the reality of the hard choices before us. Unless this House agrees to it, no deal will not happen. No Brexit must not happen. And a slow Brexit that extends Article 50 beyond 22 May, forces the British people to take part in European elections and gives up control of any of our borders, laws, money or trade is not a Brexit that will bring the British people together.

I know that the deal I have put forward is a compromise. It seeks to deliver on the referendum and retain trust in our democracy, while also respecting the concerns of those who voted to remain. But if this House can back it, we would be out of the European Union in less than two months. There would no further extensions, no threat to Brexit and no risk of a no deal. I believe it is the way to deliver the Brexit that the British people voted for. I commend this Statement to the House”.

My Lords, as we are about to have a debate, I think it would be useful for me to keep my comments for when I speak in that debate.

My Lords, the European Council says in its conclusions—I have a copy in front of me—that it,

“expects the United Kingdom to indicate a way forward”,

before 12 April 2019. This cannot simply mean that there is a contradiction with the sentence that follows, which says:

“The European Council reiterates that there can be no re-opening of the Withdrawal Agreement that was agreed … in November 2018”.

Therefore, can the Minister confirm that the European Council would be ready to look at an alternative set of proposals that could be put forward by this Parliament?

The noble Lord is right that there are two elements to the extension that has been agreed. If the deal is passed this week, there will be an extension to 22 May to get the legislation through. If the deal is not passed this week, the extension is to 12 April, at which point we will either leave with no deal, because that remains the legal default even post the SI, or a plan will be put forward for alternative arrangements. Those are the two options that we have in front of us, which is why we are hoping to be able to bring the vote forward again.

Perhaps I am being a bit slow, but could my noble friend explain something to me? She said that the Council’s decision, accepted by this Government, trumps the withdrawal Act which this Parliament passed. Will she confirm that? Therefore, whatever happens, there is no question that the departure date of 29 March has been put back, because it has been overruled by the European Council’s decision. Is that correct?

The agreement of the UK Government and the European Union for this extension is now international law, which takes precedence. We have laid the SI to extend Article 50 in those two ways and, indeed, that now trumps domestic law.

My Lords, there is one point I would like to clarify. The noble Baroness and the Prime Minister referred to taking a decision on the agreement this week. My understanding was that we had until 12 April to take that decision. Is the reference to “this week” part of the European Council’s decision?

Yes, it is. Conclusions 9 and 10 from the European Council make it clear that approval of the deal this week will lead to the 22 May extension for the Bill. If there is no agreement on the deal this week, we have until 12 April. Under those circumstances, we either have to put another plan forward or we leave with no deal on 12 April. Therefore, there is a link between having a vote on the deal this week and the 22 May extension.

In her Statement, the Prime Minister clearly said that we would leave with no deal only if that was supported by the other House. Is that now the Government’s position?

The Government’s position is that we will work towards a deal which is in the best interests of the UK and the EU. That is why we will continue to try to ensure that we get that vote, and get the deal through, so that we can leave in an orderly fashion.

Would the noble Baroness help me here, with a process of elimination? I am slightly confused. Since the Prime Minister says that there is no chance of any change to the withdrawal deal, and since the Speaker in the other place says that there is no chance of a Motion being brought back without fundamental changes to its substance, and therefore the deal, that would seem to preclude bringing the same Motion back for the third time. First, could the noble Baroness explain why the Prime Minister thinks she can bring that Motion back without the substantial changes which, as she says, would be utterly opposed by the European Union? Secondly, irrespective of what the House of Commons votes for this or next week, since there is no chance of substantial changes to the deal, that is not a substantial platform for moving forward between now and April. Does everything not point to the conclusion that there either has to be a revocation or a very long extension of the present timeframe, to allow for something substantial, such as a general election or another referendum?

The Council formally endorsed the legal instrument relating to the withdrawal agreement and the joint statement supplementing the political declaration. There was further movement at the Council with this formal approval, so that is a change to the withdrawal agreement since the last vote.

Given the ever deepening Brexit crisis, why do the Government not stand well back, take a deep breath and a clean sheet of paper, and make the most obvious of offers to Brussels? I ask again why the Government do not offer EU citizens continuing reciprocal residence for, say, a couple of years, and offer continuing free trade, but under the WTO, which gets rid of the Irish problem. We could talk about how much money we may give the EU when that has been accepted. Are the Government making such a mess of Brexit because they do not want us to leave the EU? Is that the underlying truth?

No, over the past two-and-a-half years, the Government have worked extremely hard to get a deal that is in the best interests of the UK and the EU and to deliver on the result of the referendum. The Prime Minister has been categorically clear on that. That remains our position, and that is why we will be working very hard to try to bring a vote back this week so that we can leave in an orderly way and in a way that we believe is best for the British people.

My Lords, if the duty of the Government is to keep their people secure, does this includes health security? The noble Baroness has just said that we might have to leave without a deal. There is strong opposition to this, partly because we have not prepared in the long term for no deal. I am absolutely convinced that the health and social care services are not ready for no deal, in terms of both the supply of medicine and staff. Can you assure the House that we will not leave with a no deal and put health security at risk?

As I think I and a number of Front-Bench colleagues have said, we have been preparing for no deal. We have contingency plans in place, particularly in relation to healthcare. Noble Lords have rightly raised this issue on a number of occasions. We have consistently said that we do not believe that no deal is the best outcome. That is why we have a deal on the table and that is what we continue to work for. I entirely agree that leaving with the deal the Prime Minister has negotiated is a far, far better outcome.

My Lords, now that the Government have abandoned the conventions of confidentiality and collective Cabinet responsibility, can the Leader of the House tell us whether any of the proposals under consideration carry majority support in the Cabinet?

I think the noble Lord will recognise that I have never breached that convention, and I will not be doing it now.

My Lords, will the noble Baroness clarify the constitutional issue raised by the noble Lord, Lord Robathan? Is it not the case that, under the terms of the EU withdrawal Act, if Parliament does not approve the statutory instrument, we leave on 29 March? Is she none the less saying to us that EU law does not permit the Parliament of the United Kingdom even to determine the date of Brexit? If that is so, does it not illustrate powerfully why a majority of voters in the referendum who cherish our parliamentary democracy believe passionately that it is right for us to leave the EU?

I am afraid I can only restate that 29 March is no longer a date on which we can leave the EU. The agreement made is a matter of international law. It has always been the case that agreements at an international level take precedence. The House of Commons voted to seek an extension to Article 50, which is what has been done. Rejecting the SI would not stop the extension being agreed or coming into force because it is a matter of international law.

My Lords, will the Leader of the House answer this question? From the Statement that she read out, it seems that the Prime Minister has accepted that, this evening, she will not succeed in persuading the House of Commons not to have the indicative vote. The indicative votes will go ahead, and the Prime Minister has said that the Government will facilitate that. Has she given any thought to giving this House a say on indicative votes? When will she programme that?

Obviously, the House of Commons has not yet voted, so it is somewhat difficult for us to plan business on a hypothetical. I hope, however, noble Lords will also recognise that, through the usual channels, we have given this House ample opportunities to express its view and will. Obviously, we will have to see what happens in the House of Commons tonight, and we will then have discussions in the usual way to see what we can facilitate for the House. We will certainly attempt to do that.

My Lords, could the noble Baroness explain her statement that international law trumps domestic law? The received wisdom of the past 50 years, as far as I am aware, is that international law does not apply here unless it is specifically adopted by domestic law. If she cannot answer that one, maybe noble and learned Lords in the House can, but it is news to me that international law which has not been enacted trumps our own law.

It is because this is an international agreement. It has always been the case that agreements at an international level take precedence.

My Lords, I am sure that many people outside will be amazed that the Prime Minister paid no attention to the events in London on Saturday, or to the unprecedented numbers signing a petition to Parliament about revocation. The Prime Minister acknowledges in the Statement that she needs to compromise. She has a compromise on the table: enough people will back her deal if she agrees to a confirmatory vote following a vote in Parliament. This would get all of us through the impasse, embarrassment and humiliation we are now in. Will the noble Baroness the Leader please put this position to the Prime Minister in Cabinet?

The Prime Minister has been very clear. Her priority is delivering the result of the referendum that we have. That is why she has worked so hard to negotiate a deal and that is why we believe this deal is the best option. But, as we have said, if the amendment in the other place passes, there will be the opportunity for indicative votes to happen, but we remain of the view that we should respect the result of the first referendum, and indeed the result of the election, during which both major parties said that they would respect the referendum result.

Have we got things quite straight about this week and next week? The Prime Minister has concluded that as things stand there is still insufficient support in the House to bring back the deal for a third meaningful vote, but she has also said that,

“if the House does not approve the withdrawal agreement this week”—

that is, the meaningful vote again—

“our departure will instead be extended only to 11 pm on 12 April”.

So 12 April it is. Is that right?

The Statement makes it clear that at this point the Prime Minister does not believe that she has support for the deal, but we still have several days of this week left. Anything can happen, as noble Lords know.

My Lords, the Irish Republic’s Prime Minister is reported to have said that, in the event of no deal, he does not anticipate checks at the border. If there is substance to that report and it is accurate, will somebody please explain what on earth we have been at war for in this country over the past few months?

A press release has indeed been put out about the EU completing preparations for a possible no-deal scenario, but it states:

“The EU will be required to immediately apply its rules and tariffs at its borders with the UK. This includes checks and controls”.

My Lords, the noble Baroness has now told us more than once in the context of the Statement that the Government’s priority has been the delivery of a deal. Is it not the case that in yesterday’s Sunday Times the political editor revealed, with the help of one of the noble Baroness’s Cabinet colleagues, the content of a Cabinet minute that showed that the discussion in the Cabinet was about the preservation of the unity of the Conservative Party? This is recorded in a Cabinet minute. Was not something else exercising the mind of the Prime Minister and her Cabinet when they were discussing what to do about Brexit?

No, the Prime Minister and the Cabinet have been entirely clear: we want to deliver what is best for the country. That is why we have been working so hard to get a deal that does.

My Lords, the Prime Minister’s Statement said that the EU was not prepared to reopen the agreement, but surely it could have been possible, if there had been agreement within the EU 27, to have a codicil to the agreement that would have given us a guarantee on the Irish backstop. Is it not true that the EU 27 were split on this issue and thought that the risk of no deal had been removed, so they could face the Government down?

The Council formally endorsed the legal instrument relating to the withdrawal agreement. Three new legally binding commitments were agreed, but the Council reiterated—it is in its conclusions—that there could be no reopening of the withdrawal agreement.

My Lords, does my noble friend accept that while many of us who voted to remain have accepted that we must accept the result of the referendum and work towards an orderly exit from the European Union, the Government have now had three years in which to do that, but have not shown themselves capable of resolving this issue? Does that not mean—as raised by the noble Baroness, Lady Armstrong, and others—that we should now also think about whether the mandate that the referendum and the election represented is wearing rather thin, and that the time is coming to consider whether the million people who marched and the four million who signed the petition have a point?

As I said, if the amendment for a series of indicative votes passes, we will fulfil our commitment to the House of Commons to provide government time for the process to proceed. It will be for the Commons to put forward options for consideration and to determine the procedure by which it wishes to do so.

My Lords, perhaps the noble Baroness might clarify one point for me. She has told us that the Prime Minister does not believe it is worth putting the current deal to the House of Commons this week.

The implication is that she does not think it will be passed. However, she has also told us that only if it is passed this week will the extension to 22 May apply. Presumably, the Prime Minister is optimistic that at some point this deal will pass, but what happens if the deal is passed next week or the week after? On which date would we leave the EU in those circumstances?

As I said, we hope to work towards bringing the deal back this week. Under the terms of the EU conclusions, the agreement was that the deal had to pass this week for us to get the extension to 22 May. Our hope is that we get the deal through this week. Obviously, if we do not, the next crunch point will be 12 April. I suppose we could ask the EU if we could bring the deal back next week but, under the current terms, we need to bring it back this week. That is why we will be working hard to ensure that we can get a majority for it.

My Lords, may I clarify the business for this week? I have spent my career in international relations, although I am not a lawyer. The noble Baroness, Lady Deech, is entirely correct in saying that we need to carry an international agreement into domestic law for it to happen; this House and the other House will be doing so this week. Then, at some very urgent point within the next 10 days at the latest, the withdrawal agreement, however modified, again must be put before both Houses. If it is not, we will still be stuck with the date of 12 April.

We have laid the statutory instrument to which the noble Lord refers, and our intention is to debate it on Wednesday.