European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Tuesday 1st December 2015 Lords Chamber

[Lord Wigley (PC)]

My Lords, I follow that intervention with regard to the position of the Electoral Commission. I understand from what the noble Baroness said that it agrees with the content of what the Government are doing. Is it also entirely happy with the timing implications? If I understand it correctly, the commission has said that, in practice, it needs a minimum of 16 weeks’ notice after the last regulations have been approved. Is there an implication in the Minister’s statement for that timescale? If that is the case, is the Electoral Commission relaxed that it can work within those implications on the overall timescale arising from the amendments?

[Lord Kerr of Kinlochard (CB)]

My Lords, I shall speak briefly to Amendments 12 and 22, which, as the Minister said, were made in response to a point raised by the noble Lord, Lord Jay. I have to say, although it may increase the paranoia of the noble Lord, Lord Hamilton, that the noble Lord, Lord Jay, is abroad today—indeed, I am sorry to have to say, in France.

The concern that the noble Lord, Lord Jay, was speaking to is in my view, although I have heard the noble Baroness, Lady Ludford, at least half met by the changes that the Government have made. My understanding is that the Electoral Commission recognises that that is as far as it is possible to go. As I read its briefing, it is saying that, in addition to the amendments, it will use its guidance for referendum campaigners strongly to encourage them only to accept donations from permissible sources prior to registering with the commission. That is very good advice, and the House should encourage that. I welcome the government amendments, as at least they will have the effect of increasing transparency and, backed by such guidance from the Electoral Commission, should discourage inappropriate donations.

European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Monday 23rd November 2015 Lords Chamber

Moved by

[Lord Kerr of Kinlochard]

25: After Clause 5, insert the following new Clause—
“Report on the United Kingdom’s future relationship with the European Union in the event of withdrawal from the European Union
(1) The Secretary of State shall report on the relationship with the European Union which the Government envisage in the event of a referendum vote to leave the European Union.
(2) The report provided for by subsection (1) must be published and laid before each House of Parliament, no later than 12 weeks prior to the appointment date of the referendum.”

[Lord Kerr of Kinlochard (CB)]

My Lords, Amendment 25 stands in my name and those of the noble Baroness, Lady Morgan of Ely, the noble Lord, Lord Tugendhat, and the noble Baroness, Lady Smith of Newnham. Before I speak to it, I should perhaps comment on an important point raised by the noble Lord, Lord Pearson of Rannoch, who, sadly, is not in his place. I was secretary-general of a small institution in Brussels throughout its brief life. It paid me expenses. Having clearly got a good judgment of my qualifications and qualities, it neither paid me a salary nor pays me a pension. I should put that on record. It was good to have a guest star appearance from the noble Lord, who seemed to have missed Committee but made a very interesting contribution on Report.

I should perhaps also comment on an important speech made by the noble Lord, Lord Owen. We were privileged to have him with us on Report, although not before. I found one point in what he said with which I strongly agreed, which I will come to in a moment. One point with which I did not entirely agree was his concern that we should not get too big for our boots in legislative scrutiny. The way that this House has scrutinised the Bill is a good example of constructive work. I think the Bill is better today than it was, partly because of the amendments with which the Minister has come forward, including Amendment 24B, which we debated earlier. As she fairly said in introducing it, it contains a provision, proposed new subsection (1)(b), designed to pick up a point that some of us had been making and which is encapsulated in Amendment 25.

Amendment 25 goes a little further than proposed new subsection (1)(b) in Amendment 24B, because some of us not only believe that the country does not need to see examples of other people’s relationship with the European Union but would like to know in advance of the referendum what the Government would do in the event a vote to leave: what immediate steps they would take and what permanent relationship with the European Union they would seek. Listing the arrangements of the Norwegians, the Swiss or the Turks does not quite do that. We would want to know what would actually happen.

In Committee, the noble Lords, Lord Hamilton, Lord Forsyth and Lord Stoddart, criticised me for my description of others’ arrangements. They did not find others’ arrangements very relevant; they were sure that, being bigger, we could do better—I paraphrase the argument of the noble Lord, Lord Hamilton. Several of us were not so sure about that, because in an Article 50 negotiation, if that is what we would be in, the Commission would be across the table from us and no other member state would be in the room. The Commission would be acting on guidelines laid down by the European Council by unanimity: everybody will have had to agree. The outcome of the negotiation, assuming there was one, would need qualified majority approval in Council and a simple majority in the European Parliament. That is quite a high hurdle. It was the noble Lord, Lord Bowness, who made the point in Committee that what we would seek,

“in exit negotiations, if that is where we get to, are not a fait accompli. They are not ours to demand. We cannot assume that all the other 27 states will agree. It will be for the 27 to decide and agree, and we do not have a vote in that”.—[Official Report, 2/11/15; col. 1441.]

That is correct; that is the case.

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[Lord Green of Deddington (CB)]

There is a rumour that the noble Lord is the author not just of Article 50 but of the entire treaty. Can he therefore explain to us what happens if the two-year period permitted under Article 50 expires and we cease to be a member? What happens then?

[Lord Kerr of Kinlochard]

There are probably greater experts on Article 50 than me; but, as the noble Lord undoubtedly knows, paragraph 3 makes it clear that the two years is extendable, if all parties agree. I believe that, if we were in an Article 50 negotiation, it would almost certainly be necessary to extend it. I beg to move.

[Lord Pearson of Rannoch (UKIP)]

My Lords, do I understand Mr Redwood’s position to be that, if we repeal the 1972 Act, all the other treaties that come after that Act—the Single European Act, Maastricht, Amsterdam, Nice and Lisbon—are all amendments to the original 1972 Act? If we repeal the 1972 Act, the other 27 member states may start getting difficult with us, but it is unlikely. We should be in the driving seat, not least because of the amount of money we give them, which of course we need not decide to axe overnight. We could say that if they behave themselves, we will taper the £20 billion a year we give them nice and slowly. Likewise, it is in their interests to go along with us and our free trade with them, the single market and all the rest of it, because we are their largest clients—as I said earlier. We have a certain amount of pressure with the non-EU free trade agreements, some of which have been organised entirely by the Commission and some by the European Commission and us in our sovereign right, as I am sure the noble Lord knows. It is a boggy area, but surely it depends on the political will of the Government of this country, and the political will of the Prime Minister.

Therefore I put it to the noble Lord that he is seeking to gaze into a crystal ball that is somewhat clouded. If the Prime Minister has negotiated a reform and comes back from Brussels with a piece of white paper saying “Reform in our time”, but the British people do not like it—if the British Prime Minister wants to stay in the European Union on those terms but the British people throw it out and vote against him—surely it is unlikely that he would survive as Prime Minister. Therefore, we would be dealing with a new Conservative Prime Minister, presumably somewhat less Europhile than the present one, and the whole ball game would change in the negotiations over Article 50, if we decided to go down the Article 50 route. Surely, though, we are in a position to say that we are not going to do that. Our position is so strong that we require our own free trade agreement. I do not want to follow the Norwegian/European Economic Area red herring anymore, because none of us has ever wanted to do that. How does the noble Lord react to that position, with a Prime Minister who has gone, a new Conservative leader who wants to get on with it, and a European Union that perhaps will not be as recalcitrant as the noble Lord hopes?

[Lord Hamilton of Epsom (Con)]

I am grateful to the noble Lord, Lord Green, for telling us that the noble Lord, Lord Kerr, drafted all this legislation. I think he should have declared an interest, because the last thing he will want to admit is that the EU is going to completely override everything that he drafted. When the eurozone was set up, I remember it was thought that there would be a big problem if Governments borrowed excessively and cumulative debt built up to very high levels of GDP, so limits were put in on how much Governments should borrow in the eurozone. The Germans found that too inconvenient, so they just overrode it. Then the French followed, and everybody else said, “If they are not going to follow the rules, why should we bother?”. So why are we obsessed with the legislative integrity of Article 50? It has never been tested; no one has ever left the EU. If we were to leave, it would be a unique situation. They would be losing their second biggest economy, and they would have to accommodate us.

Let us remember another thing that the noble Lord, Lord Kerr, omitted to tell us. This referendum will be advisory, not mandatory, and that is very significant.

[Lord Kerr of Kinlochard]

My Lords—

[Lord Hamilton of Epsom]

I shall give way in a moment. All we have to do in response to a leave vote is repeal the 1972 Act. After that we have to enter negotiations, and we can apply for Article 50 at the end of the negotiation.

[Lord Kerr of Kinlochard]

I think it is not for me, but for lawyers, to discuss what would ensue were we immediately to repeal the 1972 Act. I do not think it is a pretty picture, but it is not for me to depict it. On the noble Lord’s argument that we would have all these cards in our hand, I was trying to extend an olive branch to him earlier. There is a point that nobody would want us to go—that is correct. The Germans would want to go on selling cars, as the noble Lord, Lord Hamilton, reminds us almost daily.

My argument is that it might prove difficult to get 27 member states, many of which have a negative trade balance with us and not all of which are as friendly to us as our friends in Germany, to agree all the detail. The noble Lord, Lord Green, is right: the process could be prolonged and quite tricky, and the country should know before the referendum that that is the case.

--- Later in debate ---

[Baroness Anelay of St Johns]

My Lords, I am not quite sure what the colour of a herring may be, but all I can say is that I am sure that my right honourable friend could fillet it quite nicely.

However, the problem is that the result would not be predictable. This is the picture that the noble Lord, Lord Kerr, has carefully teased out. Clearly, there could be unpredictable consequences; that is why I am not in a position tonight to accept the amendment. There is also an issue about timing. It is simply not feasible, or indeed in the national interest, to tie the Government’s hands in legislation by setting out our preferred, almost negotiable, alternative before we have had the referendum, let alone before we know the consequences of the vote. We are focused on delivering a successful renegotiation. This debate, led by the noble Lord, Lord Kerr, has teased out the implications of the process. I hope therefore that I have put on the record more clearly the Government’s view of how those processes would be engaged. Although I am not able to accept the noble Lord’s amendment tonight, I hope that I have put on record sufficient information to enable him to withdraw his amendment.

[Lord Kerr of Kinlochard]

I thank the noble Baroness and all those who took part in this debate, particularly those who supported me. However, I am left worrying what the Scots have against me. When you think about it, everybody who spoke in support of my amendment was not a Scot and everybody who attacked it was a Scot—the noble Lords, Lord Hamilton, Lord Forsyth and Lord Lamont. I believe that the Stoddart family hailed from Scotland. Anyway, we Scots are a cantankerous lot.

I wish to comment on only three points from the debate. First, I totally agree with the noble Lord, Lord Stoddart, and indeed with the Minister, that the fact that the referendum is advisory, not mandatory, is a distinction without a difference. If the country votes to leave, we leave—that is for sure. I say to the noble Lord, Lord Hamilton, that I thought we had an agreement that we both were clear that any free trade agreement was perfectly possible. I am sure that it is perfectly possible although, of course, as the noble Lord, Lord Tugendhat, reminded us, there are free trade agreements and free trade agreements. Saying that it is possible does not guarantee that it is perfect. Where I cannot agree with the noble Lord, Lord Hamilton, is that I do not believe that it would be possible to secure full voting membership of the single market with no concomitant obligations on expenditure commitments. I do not believe that that is on offer or that it could be offered. That is where I differ from the noble Lord, Lord Hamilton. I am very grateful to my only Scottish ally in this matter—the noble and learned Lord, Lord Mackay of Clashfern—for confirming that my understanding of the law, although amateur, was in this case, by great good luck, correct.

The noble Baroness has moved a long way, for which I am very grateful. She has listened to what has been said in non-Scottish accents in various parts of the House during this debate. I think she is saying that, in the event that the country voted to leave, the Government would invoke Article 50—that that is the process that would be followed. I think she is also saying that the country would need to know before the referendum that, because we would be in an Article 50 negotiation, we would be unable to dictate the terms of our withdrawal—that that would be a matter for negotiation and that there could be, in her words, unpredictable consequences. I think she is saying that that is factual information, not speculative, which it would be the duty of the Government to make clear. The leave campaign will assert that we can dictate whatever terms we like. The stay campaign will assert that an Article 50 negotiation would, indeed, be a bear trap, as the noble Lord, Lord Forsyth, said. But what is important is that the Government should say what in their view would be the—

[Lord Green of Deddington]

My Lords, I apologise for interrupting the noble Lord, but does he agree that—

--- Later in debate ---

[Noble Lords]

He was asking a question.

[Lord Kerr of Kinlochard]

The noble Lord, Lord Green, and I are diplomats. We do this stuff all the time.

I shall look very carefully at what the noble Baroness has said. It seems to me she is saying that the country would be entitled to know in advance whether Article 50 would be invoked; that that article is not a fait accompli, as the noble Lord, Lord Bowness, said; that we would be unable to dictate our terms; and that there would be unpredictable consequences. If that is what the noble Baroness is saying, I see no need to press my amendment now. If that is not what she is saying and I have misheard her, we might refer to the matter again at Third Reading, but I hope that we shall not have to. I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, my party would like to spend as much money on this campaign as it can. I was looking at the suggestion that we should have 12.6%’s worth, that being our share of the votes cast in the last election. Personally, I am in favour of that, of course.

[Lord Kerr of Kinlochard (CB)]

I want to lower the temperature with a deeply nerdy amendment, Amendment 55, which concerns purdah. I apologise for not following the noble Lord, Lord Pearson—

[Noble Lords]

Wrong group!

--- Later in debate ---

[Lord Spicer (Con)]

My Lords, I am very relieved that my noble friend Lord Hamilton did not say that his amendments were nonsense this time, because I support them. I do so because I am concerned about a situation where the prospectus being put to the country is not exactly false but uncertain—where, not necessarily through any fault of their own, the Government have reached an agreement which all sides think is fine but where there is an endemic structure within it that makes it unstable. I can best illustrate the situation by very briefly going through what I understand to be the four objectives of the Government in their negotiations.

The first objective is to stop the ever-closer union. One has to say that although all sides might be able to agree to that in words, there is the acquis communautaire —the acquis communautaire is endemic within the treaty. It is there to self-implode in this context, particularly as it has always supported the move towards a centralised Europe, the European Union, by the court.

The second objective is more competition. The European Union is a trade bloc. Trade blocs exist to protect themselves against foreign competition outside the trade bloc, otherwise there is no point in having a trade bloc in the first place. A trade bloc is and always will be anti-competitive.

The multicurrency objective—that we should be allowed to have lots of currencies—is next. When we were discussing the Maastricht treaty in the other place I always felt that an endemic feature of a single European Union is that there will eventually have to be a single currency. That is always put the other way round—that a single currency means that you will have to have a single Government—but the converse is also true: that to have a single union you will ultimately have to have, if the union is to mean anything at all, a single currency. The fourth objective is to deal with immigration. I cannot think of any union, market or trade bloc that does not ultimately have freedom of movement of the people within it.

I have to say that, through no fault of the Government’s own—the various countries may well establish an agreement in the negotiations—the agreement will be unstable for the reasons I have just given. We therefore need the kind of spending restrictions implied in my noble friend’s amendments.

[Lord Kerr of Kinlochard]

My Lords, I speak to Amendment 55, which stands in my name. It seems to me that the problem that we are facing comes from the very wide language of the PPERA, which clearly was not intended to deal with the problem that I am drawing attention to. No Minister or servant of the Crown can publish any information which deals with any of the issues raised by the question during the 28 days—and “publish” is defined very widely as making,

“available to the public at large, or any section of the public, in whatever form and by whatever means”.

My worry is whether that might prove obstructive to the conduct of government business in Brussels. Ministers will continue to go there, European Union committees and the Council will continue to meet, and the myriad working groups will continue their work. It seems to me that it would be possible to construe that everything said—such as a document or briefing note passed to Members of the European Parliament, a document sent to the Commission or a pleading before the court—could be said to be relevant to the issue of the question of the referendum and could be caught by this 28-day ban.

I am sure that that was nobody’s intention, and I quite understand why the Minister does not wish to go back and reopen the language that we are confronted with. I am sure that people such as Mr Bernard Jenkin, who spoke on the purdah issue in the Commons, had no intention of making it impossible for the Government to carry out their business in Brussels. These are honourable people making a completely different point.

I am puzzled by the noble Baroness saying that she is confident that the Government would have a sufficient defence if challenged during the 28-day period. I am concerned about that. It seems to me that a judicial review—a challenge in court—could be disruptive to business, even if that challenge was successfully resisted in court. It seems to me that the possibility of the challenge might be an inhibition on our people in Brussels who are working in the national interest, doing the job they are meant to do. I am therefore very puzzled by what I think I heard the noble Baroness say—that she did not envisage making any regulations on this issue. I do not know whether we can be sure. If I were the Permanent Representative, I would be very uncertain whether I would be able to do what I am paid to do with the threat of legal challenge.

I may be exaggerating the problem but it is certainly a real one. Mr Lidington, Minister of State in the Foreign Office, told the European Union Committee in evidence in July that Section 125 of the PPERA would make it,

“very difficult if not impossible for us to undertake a whole range of routine EU business in the four weeks leading up to the referendum date”.

I admit that Mr Lidington said that in the context of the presidency. The hypothetical question was: “Suppose that the referendum date and the 28 days fell within the second half of 2017, during the UK presidency of the EU”. He was talking about how very difficult if not impossible it would be to undertake a whole range of routine EU business as the presidency. However, it seems to me that if it would be difficult to advance and defend the EU interest, as the presidency is meant to do, it would be just as difficult to advance and defend the UK interest, which is the daily business of our representatives in Brussels.

[Lord Lamont of Lerwick]

I am listening very carefully to what the noble Lord is saying—and of course he has huge knowledge of this—but Section 125 refers to “promotional material”. That is what it talks about. It says that it specifically excludes material which is requested by a member of the public. If the Scotch Whisky Association or somebody wanted a particular copy of something that had been discussed, they would still be able to do that. What this prohibits is promotional material. Surely that is wholly right—that promotional material should not be allowed in this way.

[Lord Kerr of Kinlochard]

If the noble Lord is right, I am delighted. If the meaning of Section 125 of the PPERA is that only material of a particular kind defined as “promotional” is caught, my problem is much smaller; in fact; it disappears. But it seems to me that the language of the Act says that any Minister of the Crown, government department or local authority may not “publish”, which,

“means make available to the public at large, or any section of the public, in whatever form and by whatever means”—

for 28 days, any material bearing on the issue that is in the question. If that is to be the case, then for 28 days we are going to be saying, “Stop the world while we consider whether we want to get off”. I worry that the answer to that is to say, “Don’t be silly; we would defend ourselves in court”. The atmosphere might be quite febrile. There might be legal challenges brought. I think there would be a considerable inhibition on the public service doing its job.

I ask the Minister to look at my amendment, which would not require the making of any regulations. It would simply create a small carve-out, an exemption, for the normal business of the Government with the European Union, in and with the Council, with the Commission, with the Court and with the Parliament. It seems to me that that is much safer ground on which to rest than the thought of defending challenges in court. I am quite sure that when they drafted the PPERA nobody intended Section 125 to have effect on the pursuit of government interests and policies abroad. I am sure that that was not what they had in mind. I am sure that nobody in the other place, in the great debates that took place there over purdah, had it in mind to make it more difficult for the Government to defend the national interest in Brussels. I would argue for my amendment as the simplest way in which to deal with that problem.

European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Wallace of Saltaire]

I deeply regret that I have not read the noble Lord’s debate from 2002 and I shall, of course, try to dig it out before I go to bed.

[Lord Kerr of Kinlochard (CB)]

I am fascinated by these two amendments and by the name of the noble Lord, Lord Pearson, being on both of them. They seem to call for completely different courses of action. I am reminded of the story of a crash between two Concordes in mid-Atlantic, with Henry Kissinger being found in both. The noble Lord should make up his mind. Is he in favour of an impartiality authority and a criminal offence, as proposed by the noble Lord, Lord Blencathra? I am particularly against that one: the creation of a new criminal offence requires a fair amount of thought. Or does he prefer, as I do, his own amendment? Actually, I am not really in favour of either of them. This is all a bit over the top.

[Lord Collins of Highbury (Lab)]

My Lords, these amendments are not so much probing as having a go. Their purpose is clear: this is a warning shot. I was stunned by the telling possibility that, instead of the campaigns themselves determining the issues, we should leave it to the BBC to decide which campaigns were admitted. In moving the amendment, the noble Lord once again rated the Electoral Commission highly. However, the commission has looked at the amendments and said they are unnecessary. Ofcom believes they are overkill and the BBC has also set out how it will develop its own specific guidelines. I have no doubt that the issue of bias will draw attention from both sides during the campaign. Listening to the “Today” programme may annoy me on some occasions and make the noble Lord just as annoyed on others, but we may have heard completely different arguments. It is in the nature of things that we do not approach these issues without bias ourselves. Clearly, we are all committed. The important thing is that provisions to ensure fair reporting of the campaign do exist. The BBC will also set up specific guidelines for the referendum and will constantly run impartiality reviews during the campaign so that it can ensure delivery against its editorial standards. That all happened during the Scottish referendum. These amendments are having a go rather than probing. I hope the Minister will support that view.

--- Later in debate ---

I just wonder what the reaction would have been if, prior to the referendum in Scotland, I had argued that because we are a family, the English ought to have their referendum and they ought to say what they think about Scotland leaving the United Kingdom, and that as a family we all have to agree upon this. The Scots would have been absolutely outraged. What is sauce for the goose is sauce for the gander. In this case it is absolutely a United Kingdom decision and it will be the votes in the United Kingdom as a whole that will decide whether or not we remain in the European Union. Anything less than that is striking at the heart of the United Kingdom and breaking up this family, which the people of Scotland voted—not narrowly but overwhelmingly—to reject. So I suggest, if I may, that the nationalists should get on with the job of persuading people in Scotland that they can deal with health, education, housing and all the other issues on which both Wales and Scotland are now falling way behind England in terms of performance, and stop trying to create division within our country, especially on an issue as important as this.

[Lord Kerr of Kinlochard]

As so often, I wish that we had a Scottish nationalist in this Chamber to respond to the noble Lord’s points, with most of which I agree. I bow to no one in my respect for the noble Lord, Lord Wigley. His was a very moving speech and I agree with his description of the difficulties that could arise were different results to occur in the different parts of the kingdom. I think he is correct about that. I think his solution is absolutely wrong. I cannot support his amendment.

The amendment in the names of the noble Lords, Lord Wigley and Lord Liddle, is probably unnecessary because I suspect that the votes will be counted separately in any case; I would hope so because there will certainly be rumours about what the result has been if it is close and it would be far better that there should be something on the record. With respect to the noble Lord, Lord Forsyth, it is a little harsh to accuse the noble Lord, Lord Liddle, of being a violent Scottish nationalist because he has put his name to that amendment.

There is a fundamental issue with Amendment 61C. The noble Lord, Lord Wigley, proposes a quadruple lock in the situation in which, say, England has voted to leave the European Union and Northern Ireland has, by a very narrow majority, voted to stay in. If the noble Lord’s amendment was carried and became the law, we would stay in. That seems an unacceptable situation. I agree with the noble Lord, Lord Forsyth: it is a United Kingdom decision.

It is important to note that we have no threshold requirements in this referendum and we have had no amendment in Committee proposing that there should be a threshold. That is constitutionally quite surprising for a decision as big as this. The precedent would lead one to think about a threshold. I would not have wanted a threshold. I would not have wanted a supermajority, as in the precedent in Scotland in the 1970s. I do not like referenda but the essence of a referendum is that you win or lose. It is clean; it is 51% to 49%, for example. If 51% are in favour of our leaving the European Union, we will leave, and we should not create any fudge round that. This is a yes/no decision, and if you decide to go, you go. The double referenda theory attributed to Boris Johnson, which he appears to have come off—that if the decision was to go, there would be another negotiation in which the foreigners, astonished and timorous, would come creeping, offering us far better terms to stay in—is nonsense. If the country votes to leave the Government will be required to invoke Article 50 and start the process of coming out. It has to be clean. I say to the noble Lord, Lord Wigley, that I think he is correct in his description of the difficulties that would arise, but the difficulties which would arise if his amendment were the law of the land would be much greater.

[Lord Forsyth of Drumlean]

The noble Lord said that if the country voted to leave the Government would invoke Article 50, but surely that does not follow. It would be possible for us to remain in negotiations having voted to leave and then subsequently invoke Article 50, would it not? He is the expert.

[Lord Kerr of Kinlochard]

I do not know what form these negotiations would take. I think that the position of a Government who said, “Okay, we have heard the nation speak, but now we are going to go and negotiate something else with Brussels. We are not acting on the decision the country has taken”—

[Lord Forsyth of Drumlean]

My point is that if you invoke Article 50 you are then no longer a member and it does not necessarily follow that that would be the most appropriate way of dealing with it. You could remain as a member and negotiate our withdrawal and then use Article 50.

[Lord Kerr of Kinlochard]

Actually, you are a member while the Article 50 negotiations are proceeding. You are a member of every council. Your MEPs do not leave the European Parliament, your judges do not leave the court and your Commissioners do not go home. The only difference is that in the Article 50 negotiations you do not have a vote on the position of the EU—the position that it has in its negotiation with you. That is all. You remain a member throughout the period of the Article 50 negotiations unless you decide unilaterally to go home. You do not have to do Article 50 at all. If you want you can just stop paying the bills, stop turning up at meeting and in due course it will be recognised that you have gone. It is not the case that once you invoke Article 50 you are no longer a member of the European Union.

[Lord Hamilton of Epsom (Con)]

Surely the key to the decision taken in the referendum is that it is advisory and not mandatory, so therefore it would not be necessary at once for the United Kingdom to apply for Article 50. We could merely carry on with the negotiations with absolutely nothing changing whatever.

[Lord Kerr of Kinlochard]

Technically, that is correct. It is advisory. But it seems to me that anybody who thinks that the Government could do other than act fairly quickly on the advice they had received from the entire country is in cloud-cuckoo-land. The noble Lords, Lord Forsyth and Lord Hamilton, are right in a sense in that our influence in the councils of the European Union would go into very rapid decline. We would still be there but we would not be listened to a great deal if we were heading for the exit door. That is certainly true. However, we would be members, and the idea—with all respect to the noble Lord, Lord Hamilton—that the Government might consider whether they were going to act on the advice of the country or going to try some form of new negotiation is nonsense. If the country votes to come out, we come out.

[Lord Tebbit (Con)]

My Lords, it seems to me that this is a piece of nonsense. Wales is not a member of the European Union, nor is England, Scotland or Northern Ireland. The United Kingdom is the member of the European Union. Therefore, it does not matter a damn whether some region or another—whether it is Wales, London, Ponders End or wherever—votes one way or another. The only thing that matters is which way the United Kingdom votes.

I do not intend to be provocative at this time of night—good lord, I never intend to be provocative—but it is worth remembering that there is considerable doubt over whether, if Scotland had voted to leave the United Kingdom, either it or the remainder of the United Kingdom would have continued to be a member of the European Union. The state which entered the European Union was the United Kingdom; if the United Kingdom had ceased to exist, then probably neither Scotland nor the remainder of the United Kingdom would have been a member of the European Union. It would have been up to the Scottish— and possibly the Welsh at some time or another—to negotiate entry into the European Union. We could all have a bit of a chuckle about how that would have gone, but essentially this is just a piece of nonsense which is not even worth discussing at this time of the evening.

European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Monday 2nd November 2015 Lords Chamber

Moved by

[Lord Kerr of Kinlochard]

24: After Clause 5, insert the following new Clause—
“Report on the United Kingdom’s future relationship with the European Union in the event of withdrawal from the European Union
(1) The Secretary of State shall report on the relationship with the European Union which the Government envisage in the event of a referendum vote to leave the European Union, and on the acceptability of this arrangement to every European Union member state.
(2) The report provided for by subsection (1) must be published and laid before each House of Parliament, no later than 12 weeks prior to the appointed date of the referendum.”

[Lord Kerr of Kinlochard (CB)]

Amendment 24 is in my name and those of the noble Baroness, Lady Morgan of Ely, the noble Lord, Lord Tugendhat, and the noble Baroness, Lady Smith of Newnham—a perfectly balanced ticket.

I begin by saying:

“Those campaigning for Britain to leave the EU and choose the Norwegian way can … correctly claim that a country can retain access to the single market from outside the EU”.

But this means also,

“retaining all the EU’s product standards, financial regulations, employment regulations, and substantial contributions to the EU budget. A Britain choosing this track would, in other words, keep paying, it would be ‘run by Brussels’, and … remain committed to the four freedoms, including free movement”,

of persons. It would, however,

“have given up on having a say over EU policies. Like Norway, it would have no vote and no presence when crucial decisions that affect the daily lives of its citizens are made”.

These are not my words but those of Espen Barth Eide, a former Europe Minister in Norway, last week. On his financial point, it is worth noting that the noble Lord, Lord Hannay, correctly pointed out that we are now the ninth largest contributor to the EU budget in per capita terms. The 10th largest is Norway.

If noble Lords do not believe Mr Eide, they might try the Norwegian Conservative Party’s current EU spokesman, Mr Nikolai Astrup. His advice is simple: “If you want to run the EU, stay in; if you want to be run by the EU, feel free to join us in the EEA”.

[Lord Forsyth of Drumlean (Con)]

Could the noble Lord tell us on how many occasions in the last five years we have expressed a view in opposition to a particular EU policy and on how many occasions we have been defeated in percentage terms?

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[Lord Kerr of Kinlochard]

I am afraid I do not work in the British Government and do not have the statistics to hand. However, it is the case that a large member state such as the United Kingdom, with a voting weight proportionate to its population, has a considerable say in EU legislation. An EEA but non-EU member state, such as Norway, has none whatever.

[Lord Hamilton of Epsom (Con)]

Can the noble Lord explain the free trade treaty between the EU and South Korea? Does it bind South Korea to following all EU legislation?

[Lord Kerr of Kinlochard]

I had assumed that the principal interest of the noble Lord, Lord Hamilton, was making sure that we managed, as some sort of country member or associate, to remain within the single market. The Koreans have no such rights. They have a very good free trade agreement, which is greatly in the UK’s interest, and has produced a considerable increase in UK exports to South Korea.

There is no doubt that the UK could secure a free trade agreement with the EU. That is not an issue. But if we want access to the single market, we need more than a free trade agreement. That is why the Norwegians are in what is known as EFTA and the EEA and why they are complaining about their relations with the EU.

The noble Lord, Lord Forsyth, told us that nobody in Norway wants to join the EU. Actually, the entire Norwegian establishment would like to join the EU but has not, as yet, managed to persuade the Norwegian public of that.

[Lord Forsyth of Drumlean]

It sounds just like us. I have read in a newspaper—so it may be wrong—that on the last 77 occasions when Britain has sought to amend a provision that it did not like, it has been defeated. Is the noble Lord aware of that? If that is the case, I question whether, by being in the room, we have influence. We have influence only if we are able to persuade the room. We seem to be singularly unable to do so.

[Lord Kerr of Kinlochard]

I hope I may leave it to the Minister to deal with the allegation that on the last 77 occasions when we have expressed views and wished to change a piece of legislation we have been overruled. I would be completely astonished if there was any truth in that statement.

[Lord Wallace of Saltaire (LD)]

I may be able to help. Part of popular opposition to the European Union, particularly in northern Norway, is the belief that it is a Catholic outfit and all part of a Catholic conspiracy. This was the case with much of the anti-European Union efforts when we first applied, but it is slightly below the surface now in Britain and rather more on the surface in Norway.

[Lord Kerr of Kinlochard]

I do not think I will follow the noble Lord, although I am grateful to him. The Norwegians are not happy with their relationship with the European Union, and no wonder their Prime Minister told us last week that it would not do for us. I entirely agree with him. Before the electorate are asked to decide whether we should leave the Union, they clearly need to know where we would land if we did, what new relationship with the rest of Europe the Government envisage and how certain they are that it would be obtainable—hence my amendment.

If it is not the Norwegian model, what is it? The Swiss model is clearly worse from our point of view and probably not on offer. The Swiss have individual, sectoral and bilateral agreements with the EU. However, they do not extend to services, our major export, and would take many years to negotiate. Both sides—the EU and Switzerland—agree that the arrangement is unsatisfactory, complex and unwieldy.

[Lord Stoddart of Swindon (Ind Lab)]

Why do the noble Lord and other people keep referring to the “Swiss model” or the “Norway model”? They are not relevant to this country. What we want is a British model. We are of the size and the importance, including the historic importance, to be quite different from, and to negotiate a much better agreement than, either of those two small—but highly successful—countries.

[Lord Kerr of Kinlochard]

I must ask the noble Lord not to be carried away by the impetuosity of youth. I will come to his point in a moment. The Council, with the UK concurring, agreed 18 months ago that the relationship with Switzerland should be put on a new institutional basis and be overseen by the Commission under the judicial control of the European Court of Justice—although there would not be a Swiss Commissioner or a Swiss judge in the European Court of Justice. That would be a more onerous regime and even less satisfactory to us than the arrangement agreed 20 years ago for Norway, Iceland and Liechtenstein. One could look at the Turkish model, but there you have no access to the single market at all. There is a customs union, but that means that Turkey has to apply EU customs tariffs against third countries and has no say in setting them. The Turks find the relationship highly unsatisfactory; it would be doubly unsatisfactory for us.

A free trade agreement or an association agreement between the United Kingdom and the EU would certainly be possible, and there are plenty of precedents for it. I do not think it would be particularly difficult to negotiate, so I am with the noble Lord, Lord Hamilton, to that extent, but it would not provide the access to the single market that I thought was the object of the exercise from our point of view. Let us bow to the noble Lord, Lord Stoddart, on this: if the EU were to decide that it needed to make an exception for us—I do not think it would, as so many would want to follow suit if it did—and gave us what we sought, its price would undoubtedly be our agreement to follow its labour market rules, health and safety rules, product standards, consumer protection laws and technical specifications. It will not agree that our goods should freely circulate in its single market if they do not meet EU standards. That is not an unreasonable position, and that is the one the EU would take. We would of course have lost our say in the setting of these standards.

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[Lord Kerr of Kinlochard]

The impetuosity of youth is spreading all around the Chamber. The point will be addressed in a second.

If we had no structured relationship with the EU and operated purely as WTO members, the damage to our exports and inward investment would come more quickly, since UK exports to the EU would become subject to EU tariffs straightaway—10% on cars, 15% on food products and so on. We would also lose the benefit of the EU’s 200 or so trade agreements with third countries and regional groupings and we would need to negotiate our own.

Maybe there is too much Nordic gloom and doom in my analysis. Maybe the noble Lords, Lord Forsyth and Lord Stoddart, are correct. Certainly, that great Scottish economist, Peter McKay, writing in today’s Daily Mail, finds my analysis defeatist, but it is possible that the Norwegians know what they are talking about. Maybe we could, to address directly the point of the noble Lord, Lord Stoddart, secure a new sui generis deal more generous than any that the EU currently has with anybody. Maybe we could forget all these models and establish the new Union Jack model. It is true, as the noble Lord, Lord Hamilton, says, that we would have some cards in our hand. Some 6% of exports from the rest of the EU come to us and we could threaten to cut them off, so pleasing Mr McKay in the Daily Mail, if not the British consumer. However, we need to face facts—four facts. First, 6% of their exports come to us—3% if one excludes the Netherlands, Germany and Ireland—but nearly 50% of ours go to them. In a protectionist showdown, we would be shooting uphill. They would be facing a blip; we would be fighting for our lives.

[Lord Hamilton of Epsom]

The noble Lord talks about a blip. We are talking about 4.5 million Europeans losing their jobs, on top of the astronomically high levels of unemployment they have now. If that is a blip, I am very glad that the noble Lord does not advise me on economics.

[Lord Kerr of Kinlochard]

I do not recognise the figure of 4.5 million. Maybe the noble Lord is assuming that exports that did not come to Britain, because we erected a protectionist barrier against them, would not go somewhere else in the world. It is a static analysis.

[Lord Stoddart of Swindon]

The noble Lord mentioned that we export 50% to the EU. That is a figure I have not heard before. It is usually 40%. Can he confirm the 50%?

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[Lord Kerr of Kinlochard]

No, I cannot confirm it. I think I said nearly 50%; that is what I understand. It is over 40%; I think it is nearly 50%, but the noble Lord may be right.

Secondly, half the trade surplus of the EU with us is accounted for by the Netherlands and Germany. Among the other 25 member states, a considerable number run a trade deficit with us. They might be less generous in the sort of showdown—dreadful thought—that I am talking about. Their withers might not wrung quite so much by Mr Peter McKay’s threats.

Thirdly, it would be the Commission across the table from us, because what we would be negotiating—if, under Article 50, the withdrawal clause of the treaty, we were negotiating our withdrawal—would be a treaty not between us and the other member states but between us and the EU. The Commission would, I think—it has always said so—attach particular importance to retaining the EU’s decision-taking autonomy, if only to prevent Norway and all the other neighbours, all unhappy with their present, subordinate status, seeking to secure the seat at the table which we would be seeking.

Fourthly, the procedures under Article 50, paragraph 2, become highly relevant. The Commission would need to secure a qualified majority in the Council for any deal that it struck with us. We of course would have no vote. It would also need the approval of the European Parliament and the Commission would be operating on the basis of guidelines laid down by the European Council, which would operate by unanimity. Yes, we would have friends and advocates, and yes, there would be bits of German industry that in practice would be lobbying on our side in this debate, but everyone would have to be on board, and unanimity in the European Council is what we would need to secure. That is why my amendment asks the Government to report to the electorate before the referendum, not just on what form of relationship they would envisage between us if we left, and the EU that we had left, but on its acceptability to every remaining member state. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, I very much support the amendment in the name of the noble Lord, Lord Kerr. It is important that we think about the implications for the UK of its relations with the EU, should there be a vote to leave it. Before dinner, we heard of concerns about fear and claims that the pro-Europeans wanted to talk about withdrawal and its dangers only because we wanted to whip up fear. There is a danger that comes from Eurosceptics such as Dan Hannan, who says, “You pro-Europeans invent things. We don’t want to be Norway”. That is certainly something that was suggested in your Lordships’ House at Second Reading. The noble Lord, Lord Stoddart of Swindon, has already suggested today that the UK does not want to have a Norwegian model or a Swiss model; it would like its own model. In order for the citizens of the UK, and anyone else who may be enfranchised in the forthcoming referendum, to understand the implications of what they are doing in the vote, it is important that they have an understanding, and that the Government make clear, what the implications of leaving would be for our relationship with the EU.

The noble Lord, Lord Hamilton, intervened earlier on my noble friend Lord Wallace of Saltaire to ask whether arrangements could not just carry on as they are if the UK were to leave the EU. That strikes me as a very strange sort of club. If you say to your golf club, “I’m not going to pay my dues any more; I no longer want to be a member of this club”, it is not going to say, “That’s fine, you can come and play golf again on Sunday”.

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[Lord Forsyth of Drumlean]

The noble Lord must go on because he is making my case for me. He is saying that we do not want politicians and that we need to think of another word for “autonomy”. How about “dictatorship”? If by EU decision-making autonomy you mean, “We don’t want politicians”, then that is dictatorship. Politicians, however much they may be despised or disliked, are accountable to the electorate. These people are accountable to no one, and we are now being told that we cannot possibly go against the EU decision-making autonomy.

[Lord Kerr of Kinlochard]

The noble Lord, Lord Forsyth, is making marvellous campaign speeches; I think that our job is to address the Bill and the amendments. I was trying to give an analytical speech, assessing the various models and the possibility of a sui generis, something-completely-different Stoddart model. When I used the words “decision-making autonomy”, I was using words which are quite common in the Council, in the Parliament and in the court; I was not referring to the Commission.

[Lord Forsyth of Drumlean]

Yes, you were.

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[Lord Kerr of Kinlochard]

Yes, I said that the Commission would be the spokesman in the negotiation, but its concern would be to preserve the autonomy of EU decision-making—which the European Council regularly insists on and insisted on in relation to the changes to the arrangement with Switzerland. If you are not a member of the club, you do not have a vote on club decisions. That is all it means.

[Lord Forsyth of Drumlean]

I will come on to address these points, because I took the opportunity of checking a few facts. For example, just before the dinner break, I did not know why when we were supposed to be discussing what is in Britain’s interest we continued to discuss what is in Norway’s or Iceland’s interest—but, as people have raised it and have said they want facts, I have found the following quote from the Icelandic Prime Minister from June this year. The noble Lord has already read this quote, but he did not put it in his speech. The Icelandic Prime Minister said:

“'For us staying outside of the European Union has been very important, even instrumental in getting us out of the economic crisis so it has affected us in positive ways, giving us control over our own natural resources, but also having control over our own legislation and our own currency, which if we had not had that, we would not be in the situation where we are now with a very fast improving economy”.

When I said earlier that nobody in Norway wanted to join the European Union and I was shot down and told by the noble Lord that the establishment wanted to join the EU, I thought that I had better check what the position was. I found that seven out of 10 Norwegians would reject EU membership and just 19% would like to join. Seventy-four per cent would say no to Norway joining the EU, with 17% wanting to join—these figures are from an opinion poll in 2014.

The noble Lord mentioned Switzerland. According to a 2012 poll for the Swiss Broadcasting Corporation, just 6% of Swiss voters favoured joining the EU against 63% who want the present bilateral arrangements preserved, and 11% who want to join the EEA. There does not seem to be any great feeling in either of those countries that they have made some dreadful mistake; on the contrary, they seem very happy. The Norwegians are very happy with their fish, their oil and their prosperity.

Then we have the bogus argument that says that if you are outside, you have to accept a huge amount of legislation which you would have no say over. I do not know whether the figures in the Daily Telegraph—the noble Lord tells me that that is where they were from—that say that the last 74 times we have objected to things we have been defeated are correct, but those people who argue that we need to stay in to have a say should tell us how effective that say is because the evidence is that it is not very effective. The noble Lord, I know, has conspired with me and other Ministers to turn defeat into an apparent victory in drafting the press release after one such defeat.

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[Baroness Anelay of St Johns]

My Lords, as I said, perhaps I can be more helpful. The noble Lord has been patient. I am now getting to the point that he wishes to hear. Noble Lords may recall the Prime Minister’s words last week in the other place, when he said,

“if we do not get what we need in our renegotiation I rule absolutely nothing out. I think that it is important that as we have this debate as a nation we are very clear about the facts and figures and about the alternatives”.—[Official Report, Commons, 28/10/15; col. 345.]

As I mentioned earlier today, if we are to put an obligation on the Government, the Committee would need to think very carefully about the terminology used. That goes to part of the debate we have just had. I have concerns about some of the wording used in these amendments. I can understand the good will behind some of it but there would be uncertainty about what the objective obligation specifically requires. While the Government acknowledge the importance of providing balanced information, this requirement could be an undue source of criticism, as there can often be a surprising—or, rather, unsurprising, I should say, given what we have heard tonight—level of disagreement about what counts as objective.

I think there has been a very fair reflection tonight of the feelings on all sides of the argument and about how fairness and evenness may not be perceived as such by others. It is a very serious matter to which we all need to address our greatest concentration in considering how we make progress on these issues. As I advised the Committee earlier, the Government will now think carefully about the issue of public information and consider what we may be able to bring forward by way of an amendment on Report. I continue to listen with interest to the arguments put forward by the Committee. Each of these groups of amendments has rounded out the debate more fully and started to crystallise some of the areas where there may be some agreement and those where perhaps there is unlikely ever to be agreement.

In the light of the answer I have given, I hope that the noble Lord, Lord Kerr of Kinlochard, will withdraw his Amendment 24. I urge other noble Lords with amendments in this group not to move them when we reach them.

[Lord Kerr of Kinlochard]

I thank the noble Baroness for her customary courteous, careful response to my amendment. I accept the criticism she made of its second proposed new subsection. She put it very vividly in saying that I was putting the cart before the horse before the horse had even bolted. I am sure the stable door was there somewhere. She has a point. Of course, the sequence would be, if we voted no, there is the vote, then presumably the Government go to Brussels and invoke Article 50, and there is a discussion from which an arrangement emerges, so she is absolutely right in her logic.

My amendment would have been better if I had asked the Government to report on the relationship with the European Union that they envisage in the event of a referendum vote to leave and on their view of the acceptability of such an arrangement to every European member state. I would be happy to see it adjusted. Maybe the Minister would wish to adjust it a little further.

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[Lord Forsyth of Drumlean]

My Lords, I am very conscious that I must not irritate the noble Lords, Lord Hannay and Lord Kerr, by making a campaigning speech. Having looked at my amendment, Amendment 25, I am at a loss to think how one could turn this into a campaigning speech. It is clearly an amendment that should be acceptable to all noble Lords in the House, including to my noble friend the Minister.

[Lord Kerr of Kinlochard]

I do not in any way wish to interrupt his flood. I merely wish to tell him that I support his amendment.

[Lord Forsyth of Drumlean]

I am now having doubts. I am not surprised that the noble Lord supports the amendment, because it is a very sensible one. All that it does is seek to ensure that when the Prime Minister has finished his negotiations we have some kind of government publication that tells us what they were about, what their outcome was and what the implications would be for our continued membership of the European Union with those changes, if he so recommends, or the alternative.

The amendment is drafted in neutral terms and I hope that my noble friend might be able to accept the principle. I do not think that it is too much to ask. In my noble friend’s Second Reading speech, he hinted as much. The Chancellor of the Exchequer said in the early part of the summer that there would have to be some sort of paper. There are none of the issues that we have had to discuss earlier this evening arising from the debates that we had on publications of the benefits of being in and out. This is completely straightforward. What did the Prime Minister want? What did he get? What will be the effect on our relationship with the EU and what is the outcome? I beg to move.

European Union Referendum Bill

Lord Kerr of Kinlochard Excerpts

Tuesday 13th October 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

A referendum is,

“a device of dictators and demagogues”,

said Mrs Thatcher in 1975. Clearly, like the Bishops, she knew her Book. We are, however, where we are. This is not like last time. It is not like the Battle of Balaclava: the gallant charge of the Light Brigade with the noble Lord, Lord Dobbs, playing Lord Cardigan. The manifesto pledge was clear; the electorate voted; the House of Commons has voted. Our task is to improve this Bill; we cannot possibly oppose it.

I do not want to talk about the negotiations in Brussels. I echo all that the noble Lord, Lord Boswell, said. I cannot add to that because I do not know what is happening and I understand neither our aims nor our methods. I am baffled, as is Brussels. Instead, I will step back a bit. I have a nasty feeling that we have been here before: a newly elected Government; an intervention in the Middle East, not hugely successful; non-intervention to assist a European neighbour invaded by Russia; and a Government seriously contemplating the possibility of stepping out from the task of forging a stronger, more competitive Europe—this is 1956. We paid for our Suez mistake over a generation in foreign policy.

Our worst mistake, however, was to walk out of the Val Duchesse talks which followed the conference at Messina and led to the Treaty of Rome. We knew almost immediately that it was a mistake. Prime Minister Macmillan tried to prise open the door that we had slammed behind us as we flounced out. However, it took 15 years to get that door open. Meanwhile the rules of the club had been written in our absence and inevitably to our detriment. Once we were in, it took us another 15 years to correct that detriment: to establish, at least in principle, a single market; to bring down external tariffs; and to entrench free trade. It took another 15 years finally to deliver Mrs Thatcher’s vision—the vision of the Bruges speech—of a wider Europe: bringing Budapest, Prague and Warsaw into the Union and to some extent laying to rest the ghosts of 1956.

How ironic that, under another Conservative Government, we are contemplating throwing all that away, renouncing our leading role in the single market—now of 500 million—and reverting to sovereign autarchy and isolation. It was a Conservative Party thinker who pointed out that the lone man lost in the Sahara has absolute sovereignty but is absolutely powerless. You have to be in to win. People have spoken about the Norwegians. To obtain access to the single market they have to accept EU rules, standards and specifications, and have no say in writing them. It was the Norwegian Foreign Minister who reminded us, “Leave, and you will be run by Brussels. Stay, and you can run Brussels”.

Who would like us to leave? Mr Putin, obviously—he thinks only in zero-sum games and the weaker the West is, the better, as far as he is concerned. Our American friends, our Commonwealth friends, our developing country friends, our Asian investor friends: all urge us to stay in their interests and, they believe, ours. They find it baffling that we might want to repeat the Messina mistake; so do I.

I believe we owe it to the electorate to enable them to make a properly informed choice: to heed Mrs Thatcher’s 1975 warning and see through the silly slogans and assertions, which will come from both sides, while realising the historical gravity of the decision. This is not a vote of confidence or no confidence in the Government. It is not an opinion poll on benefit cuts, devolution or austerity. As the noble Lord, Lord Tugendhat, said this morning, a vote to leave the EU would not be a reversible vote, like a vote in an election. The decision would be one that our children and grandchildren would have to live with, so we have to improve the Bill.

Others have spoken of extending the franchise. I agree with all three suggestions that emerged this morning. I support what the noble Lord, Lord Shipley, said and agree strongly with the case made by the noble Lord, Lord Tyler. I support what the noble Baroness, Lady Morgan, and the noble Lord, Lord Tugendhat, said about 16 and 17 year-olds.

On Clause 6, I admit that I am baffled. I did not understand this morning’s exchange between the noble Lord, Lord Forsyth, and the Minister. The concern I have about Clause 6 is that I would like to be reassured that this additional provision, accepted by the Government in the Commons, would not affect practically the conduct of government business in Brussels to the detriment of the national interest. That is what I will be looking for.

The most important changes, or rather additions, that we need to make to the Bill are those about which the noble Baroness, Lady Morgan, spoke this morning. How can we ensure that the country is properly informed in advance on the consequences of a vote to leave? When in the last Parliament we in this House looked at the Bill of the noble Lord, Lord Dobbs, we carried by a huge majority an amendment requiring the Government to report, before the referendum, on the economic effects of our leaving. The country really needs to know the legislative and statutory effects of leaving in the areas of responsibility of every government department, central and devolved. The country needs to know the effect on individual citizens resident here and resident elsewhere in the EU.

Above all, the country needs a definition of out. It needs to know what out means. As the noble Baroness, Lady Morgan, asked, what relationship with our shortly to be former partners would the Government envisage if required to take us out, and on what evidence do they believe that the 27 would agree? The economic consequences of repeating the Messina mistake would clearly be much bigger now, with the Union so much wider and stronger. To what extent, and in what negotiable ways, do the Government intend that they would be mitigated? The country needs to know, so getting the Bill right really matters.

I end with a tribute to the noble Lord, Lord Lawson of Blaby, not so much for what he said today—although there was a point in it with which I agreed—and not for the messages of despair about continental Europe and the need for us to escape from it that he has been sending us in recent weeks from his hideout in the maquis of continental Europe, but for the perception and generosity of his wise weekend words about Geoffrey Howe. I add a tribute in passing to the noble Lord, Lord Hennessy, for his contribution to that extremely moving BBC television programme on Denis Healey last week. Healey and Howe were two sparring partners and great statesmen—two very brave men and great Chancellors. I worked for them both, as I worked for their successor, and I know the importance that both would have attached to this referendum. Both campaigned in 1975 with Mrs Thatcher for us to stay in. Both were proud patriots with a sense of history and the knack of bending its arc our way, particularly in Europe—Healey with his link to Schmidt and Howe with his link to Delors. They would not have wished to see us repeat the Messina mistake. I really hope that we will not.

Syria

Lord Kerr of Kinlochard Excerpts

Wednesday 24th June 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I too thank the noble Baroness, Lady Falkner, for this debate but, oh, how we need a standing Select Committee to regularly scrutinise policy on subjects such as this to focus our debates. I hope that the Chairman of Committees will read Hansard tomorrow.

The Minister will well remember the debate that took place almost two years ago when a majority in this House took the view that it would be a mistake to bomb Damascus. The principal argument that many noble Lords adduced was that it was not clear what the Government envisaged doing the day after such a bombing. The strategy was not clear—we could not discern a strategy. I must admit that I still cannot discern it.

I see no way of saying in three minutes anything that is commensurate with the scale of the tragedy that has been running for four and a half years, given the scale of the casualties and the 10 million displaced people. Therefore, I will just ask the Minister four questions. I have no time for analysis or advocacy. First, who do the British Government recognise as the legitimate Government of Syria? Are we in diplomatic relations with them? Is it still our view that President Assad’s departure is essential, even if his successor was Jaish, which is al-Qaeda by another name, or ISIL?

Secondly, is the UK still conducting military operations against ISIL only in Iraq and not in Syria? If so, can the Minister cite a precedent for any previous similarly geographically constrained military operation against an enemy occupying parts of more than one country?

Thirdly, since the Syrian tragedy is a proxy war between Iran and Saudi Arabia, do the Government agree that the key to a solution must lie in Tehran and Moscow on the one hand and Riyadh, Doha and Ankara on the other? What are we saying in these capitals? What incentives are we suggesting which might encourage both sides to back down?

Lastly, is it really the case that whereas the Turks and the Jordanians are dealing with millions of refugees, and other European countries such as Germany, Sweden and the Netherlands are taking in tens of thousands of refugees, we in this country have so far admitted fewer than 200? If so, how can we reconcile that with our history, traditions and values?

EU and Russia (EUC Report)

Lord Kerr of Kinlochard Excerpts

Tuesday 24th March 2015 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It is a great pleasure to hear the noble Earl, Lord Oxford and Asquith, demonstrate how viable it can be to this House to have the participation in our debates of an intelligent former member of the Diplomatic Service. It has been a very long wait, I can tell you.

When I served in the embassy in Moscow, nearly 50 years ago, our boss in London, the superintending under-secretary, was a ferocious man who spoke 14 European languages and had spent the war in Moscow and Kuibyshev, where the embassies were moved when Hitler’s army got near Moscow. He demanded quite a high standard of analytical skills from those who worked for or to him, and of course in the embassy it was a sine qua non that everybody spoke Russian. Our ambassador was an extremely lucky man, because he not only spoke brilliant Russian but was lucky enough to be the brother of the noble Baroness, Lady Warnock.

That is a shameless hook on which to hang the fact that I greatly regret the news that the noble Baroness will stand down from our House this week. I speak only for myself, but I think the whole House will agree that the penetration and focus of the intelligence and judgment that she has brought to bear in our debates has been extremely striking. It used to light up both the University of Oxford and the University of Cambridge, it has lit up our debates, and we will miss her very greatly indeed.

The point in the excellent report by the committee of the noble Lord, Lord Tugendhat, on analytical skills is correct. The Foreign Office has lost a good deal of the expertise that Duncan Wilson and Tom Brimelow had, but it may have something to do with lack of resources; relatively speaking, and absolutely, the Foreign Office is much less well resourced now than it was then.

On the substance of the report, one has to start with Crimea. President Putin has now admitted in a public interview that he decided on 22 February last year to annex Crimea. That was three weeks before the sham referendum on the Crimean peninsula. He made up his mind even before there was any attempt to generate a grievance among the Russian speakers. The OSCE High Commissioner on National Minorities had just confirmed that there was no threat to the Russian-speaking people in Crimea. The whole excuse for annexation was manufactured.

I am not terribly happy with the Minsk agreements for many reasons, but one of them is that they say nothing about Crimea. Moreover, the European Council has, in a way, added to the problem by deciding that the sanctions would terminate in December, when the Minsk programme terminated—if one were to assume, perhaps implausibly, that the Russians carry out the full Minsk programme—so it is entirely related to action pertaining to the Donbass. What about Crimea? Is a policy of non-recognition quite enough as a response to the first major change in the post-war settlement and a breach of all our basic texts, including the Helsinki text and the Paris charter? Is it enough just to look the other way? In particular, is it enough for this country, as a signatory of the Budapest memorandum of 1994? Then, with our partners the Americans, the Ukrainians and the Russians, we committed ourselves to ensuring that the territorial integrity of Ukraine was respected, that no economic pressure was brought on Ukraine and that no violence, or threat of the use of violence, was brought against Ukraine. The Russians have clearly breached all three commitments. What do we do? Do we do nothing at all? It does not add to the credibility of such texts if we do nothing at all. The Ukrainians would not be in the fix that they are in today if they had retained the nuclear weapons that we and the Americans urged them to hand over. They handed them over in exchange for this text, but is it just a bit of paper? It has John Major’s name on it, and John Major is an honourable man. Would it not be dishonourable to do nothing about it now?

I have grave doubts about whether sanctions will do the trick. Sanctions do some damage, but the sanctions that do most damage to the Russian in the street are the counter sanctions on Russia’s imports of our western consumer goods and foodstuffs. There are shortages in the shops; the Russians see that and they blame NATO—they blame us. It has accentuated the spiral of the narrative of plucky little Russia under threat from the wicked West. I can see that if you tightened sanctions so that they actually affected the Putin inner circle, as the American sanctions do and ours do not, you might achieve more. But, frankly, I do not think that this will be done by sanctions, and it will not be done by a ceasefire, which will probably be honoured no better than it has been in the past.

We have to raise Putin’s perception of the price to him of carrying on doing what he is doing to Ukraine. We first need to convince him that we would not let Ukraine collapse economically and not let it go completely down the tubes. The report by the committee chaired by the noble Lord, Lord Tugendhat, has an interesting suggestion at paragraph 282 that we call an international conference of potential donors. I do not know about that. I certainly think that it would be very good to know the Government’s view about that. The Finance Minister of Ukraine was in London yesterday seeing the Chancellor of the Exchequer. Did Mr Osborne offer any help? I do not know, but I hope that we are offering help.

On the question of arms, I disagree with the noble Lord, Lord Anderson. I think we need to convince President Putin that we would not let Ukraine’s defence forces collapse. I am not arguing that we should send UK Armed Forces, and neither is President Poroshenko, but he is asking for people to send arms. If we regard Ukraine as an independent country and regard him as its legitimate leader, does he not have a right to self-defence? I have difficulty with the argument that it is provocative to the aggressor to assist the victim, and that appears to be the argument: the Russians would not like it, so let us not do it. I do not buy that argument.

I agree with everything that the noble Lord, Lord Jopling, said about NATO. I think that is exactly right. It needs to be clear that Article 5 means something to us. I entirely agree with that, but I disagree with those in the US Congress who argue that we now need to see tactical nuclear weapons deployed in the Baltic states and in Poland. That seems to me very rash. We should stick to the 1996 NATO position that there is no plan, intention or reason for the forward deployment of tactical nuclear forces.

Conversely, I think that the Americans were wrong as regards the 2008 NATO communiqué and the invitation to Ukraine and Georgia to join the alliance. That was a mistake. It would be good to make it clear to all parties that it is a dead letter, that NATO’s invitation is not currently open, and that the Ukrainian regime is not currently seeking such an invitation. If that could be codified in some way, it might contribute to finding a solution, because I do not think that the solution lies in ceasefires or sanctions but in finding a settlement. One needs to find out what President Putin wants and see to what extent that is compatible with what is right for Ukraine—a judgment for President Poroshenko.

The committee is right to suggest that there is a dialogue to be had between the Eurasian Economic Union and the EU. It is also right to suggest that the President of the European Council, the former Prime Minister of Poland, has a very important part to play in this, not just operationally but given that he is who he is.

There is one last thing for us to do that is really rather important. I apologise to the noble Lord opposite for carrying on, but I did speak about general matters for a moment or two at the start of my speech. Yesterday, I was surprised to note that the Prime Minister’s Statement on the European Council did not mention the first, and for most members of the European Council the most important, matter discussed at that Council, which takes up a third of the Council’s conclusions: the plans for energy union. These will be extremely difficult and may well end up much less ambitious than the original Commission plans, but this is the real way to respond to an aggressive Kremlin. We need to reduce the perceived dependence on energy from Russia. Actually, we are not dependent on it; Russia is dependent on us. It needs to sell to us, and that need is greater than our need to buy from it. But in some member states, particularly Austria and Hungary, the pressure of the energy link is working perversely as regards the interests of the European Union and Ukraine, so I would say that one of the most important things to do is to press on with energy interconnection, both electricity and gas, and get as far as we can get, realistically, with an energy union.

Russia

Lord Kerr of Kinlochard Excerpts

Thursday 16th October 2014 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I, too, congratulate the noble Baroness on her escape from the hurly-burly of the red Benches to the deep peace of the Foreign Office marriage bed, where she will be quite at home in these Elysian fields—the land of lost content—where all officials are uniquely brilliant, and all advice uniformly perceptive.

I will start by quoting from President Putin’s article in this morning’s Politika in Belgrade:

“Unfortunately, the vaccine against the Nazi virus, developed at the Nuremberg trials, is losing its effectiveness in some European countries. A clear sign of this trend is open manifestations of neo-Nazism, which have become common in Latvia and other Baltic states … We are especially concerned in this respect about the situation in Ukraine, where an unconstitutional state coup in February was driven by nationalists and other radical groups”.

That is the message pumped out daily inside Russia by the controlled state media. The annexation of Crimea produced a huge boost in President Putin’s popularity, and the propaganda is very widely believed in Russia today. They believe that military action in the Donbass was necessary in response to attacks on ethnic Russian minorities by fascist thugs and paramilitaries abetted by the regime in Kiev, which was installed by NATO.

I do not know whether President Putin believes any of that himself, but I do not know whether the Government are taking action to disabuse him. The official reaction of the Russian Ministry of Foreign Affairs to the NATO summit in Wales was that it proved that the alliance was unable to change its “genetic code” and was still determined to dominate the military sphere in Europe in breach of all previously agreed security arrangements. I do not know whether the regime believes that, and the little decision made about rapid reaction forces—a few hundred men—is hardly likely to convince the Russian Defence Ministry and Foreign Ministry that NATO poses a very serious threat to Europe.

However, I do not know whether the Government are exploring those misapprehensions with President Putin or whether they know what his strategy is, and I have to admit that I am not entirely clear what our strategy is. I am clearer about German policy. The Germans seem to be much more actively engaged and much clearer about what they are trying to achieve. We are much louder in our rhetoric but much less clear about our strategy.

I will therefore ask the Minister four questions. First, is it the Government’s policy to point out to Moscow in respect of minority rights in the Baltic states that the three countries’ accession to the European Union was made conditional on the extension and entrenchment of minority rights, and that any doubts or concerns about their performance against those undertakings in respect of such rights should be pursued by peaceful means in Strasbourg, the Council of Europe, and the European Court of Human Rights, which is an institution created at the instigation of Conservative lawyers and maintained down the years by successive law officers of this country, and which most of us feel has a very important role to play in sustaining human rights across Europe? Is that our advice to President Putin, and if, as I hope, it is, what response are we getting?

Secondly, in respect of NATO—here I echo points already made in this debate—are the Government pointing out to Moscow that while Article 5 of the Washington treaty applies to all allies, including the newest ones, President Poroshenko has not applied to join the alliance, it is not UK policy to encourage him to do so, and a Ukrainian application, if it arrived, would not be supported by the British Government? I believe that that is our position, but I would very much like to hear the Minister confirm that. If we are making that point to President Putin, what response are we getting from him?

Thirdly, in respect of the continuing conflict in the Donbass, are we telling Moscow that we believe in the territorial integrity of Ukraine and that we also have no objection whatever to further devolution from central to regional authorities but believe that that is entirely a matter for the Ukrainian people to decide for themselves, and that full OSCE monitoring in the conflict zone should be permitted forthwith, and all foreign forces withdrawn? I assume that that is what we are saying—but, again, I would be very grateful if the Minister would confirm that.

Finally, in respect of sanctions, is it the Government’s policy that if all foreign forces left the Donbass—and OSCE monitors confirmed that they had—sanctions would at once be unwound, provided only that the energy blockade of Ukraine was called off? I remind noble Lords that there has been no gas supply from Russia to Ukraine since the second week of June and that the interruptions of several EU member states in the past month can hardly have been accidental, when winter is approaching. My concern is that we should not entertain unrealistic hopes that ever tighter sanctions might secure the reversal of the illegal annexation of Crimea. Are the Government making these points, and do they envisage any multilateral process to follow up, perhaps in the context of the Budapest memorandum, as the noble Lord, Lord Owen, suggested? The signatories to the Budapest memorandum were also the guarantors of its terms; we cannot do nothing—we cannot pretend that it does not exist.

While it is right to reject nonsense about Nazis and NATO, we need to talk to the Russians and not just at them—and not just because of the plight of Ukraine. The two external powers that could, if they chose, do most to bring about an end to the unfolding tragedy in Syria are Iran and Russia. I believe that we are talking to the Iranians, and I hope that we are talking to the Russians. We should be sufficiently humble and ready to acknowledge that the Russians were on to the threat of al-Qaeda long before we were, and we should be ready to accept that, because of the policy that they have followed and the policy that we have followed, their influence in the Middle East is considerably greater today than is ours—possibly in Ankara, probably in Cairo and Tehran and certainly in Damascus, as the noble Baroness, Lady Falkner, pointed out. It is in our interest to engage the Russians not just about Ukraine but across the board.

Gaza

Lord Kerr of Kinlochard Excerpts

Monday 14th July 2014 Lords Chamber

[Baroness Warsi]

I concur with the noble Lord opposite who said that the life of a Palestinian child is worth no less than the life of an Israeli child and that the life of an Israeli child is worth no less than the life of a Palestinian child. Every child is equal, irrespective of race, religion or nationality. In relation to civilian deaths, I can inform the House that during the 2008-09 Cast Lead operation there were nine Israeli civilian casualties and 759 Palestinian civilian casualties, of which 344 were children. In relation to the 2012 Pillar of Defense operation, there were four Israeli civilian casualties and 90 Palestinian civilian casualties, of which 30 were children. In the current 2014 Protective Edge operation, there have so far been no Israeli civilian casualties and 133 Palestinian civilian casualties, of which 36 were children.

[Lord Kerr of Kinlochard (CB)]

My Lords, I thank the Minister for repeating the Statement. The Foreign Secretary was right to talk of the mounting horror of the watchers at what is going on. Israeli friends often accuse one of double standards. They say that we hold them to a higher standard than their neighbours, and that atrocities perpetrated by Israelis are condemned more loudly than those from around. They are completely right: we do hold Israel to a higher standard. Respect for Israeli civilisation, values, culture and history is widespread in this country and that raises the bar, so we take more seriously the behaviour of the Israeli armed forces in recent days. What new action will the Government take to bring home to Mr Netanyahu our abhorrence of the barbarities being perpetrated by a great civilisation?

[Baroness Warsi]

The noble Lord is probably referring to what I said in response to my noble friend—that Israel is a liberal democracy and we therefore hold it to account against liberal democratic standards. There is no doubt that Israel would like to be held accountable against liberal democratic standards because those are the values that it upholds and stands for. It would be wrong for us to try to compare the conduct of Israel as a liberal democratic state with that of a potentially designated terrorist organisation.