European Union (Withdrawal) (No. 6) Bill

Debate between Lord Cormack and Lord Kerr of Kinlochard

Committee: 1st sitting (Hansard): House of Lords
Friday 6th September 2019 Lords Chamber

[Lord Cormack]

That was a fairly lengthy intervention, but the fact of the matter is that we have been placed in a straitjacket by the Government’s decision on Prorogation. We have an agreement between the two Front Benches here. That is why we should move forward and get the Bill on to the statute book as quickly as possible.

[Lord Kerr of Kinlochard (CB)]

I had not intended to follow my noble and gallant friend Lord Stirrup’s remarks because he included in them an invitation to some EU constitutional experts. I absolutely do not aspire to the status of an EU constitutional expert, but what he said was absolutely correct. There are two possible statuses: one is the that of a member of the European Union, the other that of a former member. The noble Baroness, Lady Ludford, is absolutely right that there is no provision in Article 50 for qualitative conditions on an extension. Temporal conditions—the length of the extension—are possible. That is what we are talking about.

The point raised by the noble Baroness, Lady Falkner of Margravine, about the European Council decision refers to the treaty rights and responsibilities of a member, one of which is the duty of loyal co-operation. That is set out in the treaty. It would not be possible to withdraw treaty rights by European Council decision. The only way to change treaty rights is by amending the treaty, which requires unanimity, and while we are members we would presumably not vote to limit our treaty rights.

The language in the decision referred to by the noble Baroness relates to the contingency, which sadly has now arisen, that the United Kingdom is not present and voting in all committees and regulatory organisations of the European Union. The United Kingdom has voluntarily decided not to exercise some of its treaty rights. Some of these organisations operate by unanimity. If there is an empty chair there and we are a full member with full voting rights that we have not exercised, decision-taking machinery among the European Union—of which we are a member—being exercised by only the 27 could grind to a halt. That is why that language is in the European Council decision. That is why our Government, though in my view quite wrongly, has decided to operate an empty-chair policy in certain parts of the European Union organisation. They have agreed that the Finnish presidency shall exercise our voting rights as though we were there so that unanimity, where it is necessary for a decision to keep the business going, can still be reached. That is the purpose of the language of the European Council’s decision.

The key point is that paragraph 3 of Article 50 is about only temporal extensions. I say to the noble Baroness, Lady Deech, for whom I have huge admiration—of course, she is a lawyer and I am not—that I believe it is not possible to set conditions to the extension of time under Article 50. I therefore say to her and to the noble Baroness, Lady Falkner of Margravine, that both amendments are unnecessary and should not be pressed.

European Union (Withdrawal) (No. 6) Bill

Debate between Lord Cormack and Lord Kerr of Kinlochard

2nd reading (Hansard): House of Lords
Thursday 5th September 2019 Lords Chamber

[Lord Cormack]

I remind the noble Lord that the last monarch to refuse Royal Assent was Queen Anne, over 300 years ago. Subsequently, every Act passed by Parliament has been submitted for, and received, Royal Assent.

[Lord Kerr of Kinlochard]

I want to move on to the European theme and the question of negotiation. The scripts spoken to yesterday by a number of noble Lords contained the familiar argument, which the Prime Minister has been using extensively, that the legs would be knocked out from under his negotiating strategy if no deal was taken off the table. I have spoken on this before and I do not want to bore the House, but I believe that is completely untrue. Saying, “If you don’t give me what I’m asking for in this negotiation, I will shoot myself”, is not a credible threat.

We know that the pain is asymmetric; although everyone is damaged by a no-deal crash-out Brexit, it is the UK that will be damaged hugely more than anyone else. We know that and they know that. We know that there is a problem of asymmetric preparation. They are better prepared than we are, even though they have proportionally less of a problem than we have.

Everything that I have said up to now I have bored the House with before, but here comes a new point. It is now not possible, or it will very shortly not be possible, to get a new deal agreed at the European Council on 17 October. I think the Prime Minister may listen too much to Mr Cummings, who is an expert on game theory and has studied it very closely; I do not think he has done much international negotiation, but he knows a lot about game theory. I believe that he is playing the game of chicken, which we know from American movies in the 1950s and 1960s, where you put your foot down hard on the accelerator, ideally throw away the steering wheel and drive straight at each other, each believing that the other guy will swerve. There are two problems in applying that theory to negotiation with the EU. One is that it is a union, consisting of 27 member states. It takes them a long time to make a decision to swerve. They need to get instructions in Brussels on whatever you put forward; they need to debate that, send the reactions back and then hear what the Government think.

Today’s papers say that Mr David Frost was saying yesterday in Brussels that the British could not put forward any proposals now because they would be attacked by the ERG, published by the EU and criticised in the Article 50 working group. Each element of that is probably true, but it should not mean that we do not put forward any proposals. When Barnier says “paralysis” and our Prime Minister says “remarkable progress, wonderful progress”, the question of disingenuousness creeps in again. I tend to believe Mr Barnier; I find it harder to believe our Prime Minister, which is a very worrying thing to say. It will take them a lot of time. Any proposals to be discussed on 17 October ought certainly to be in negotiation now with the Article 50 working group.

It is my belief that Mr Cummings, in addition to believing in the game of chicken, does not mind if we have a no-deal crash-out. Given what Mr Farage has been saying, he may actually see benefit in a no-deal crash-out. Mr Farage has said that if the Prime Minister negotiates some new variant of Mrs May’s withdrawal agreement, his party will run against the Conservative Party in every Conservative-held seat, whereas if Mr Johnson sticks to his promise to go, do or die, on 31 October with no deal, various forms of pact, informal or formal, are possible. That is what Mr Farage is saying. I have a theory that Mr Cummings may be listening.

In addition to the problem of trust in respect of the text of the Bill before us, we seem to have a problem of whether it will be interpreted not just in the letter but in the spirit. The Prime Minister, obliged to write the letter that the Act would require him to write if the circumstances set out in Clause 1 arose—the noble Lord, Lord Callanan, confirms that the Prime Minister would feel so obliged—could send it and make sure that the European Union did not agree. The European Union needs unanimity. He could talk to a friend in, let us say, Budapest; as a classicist, he could also put his oral presentations in a “num” rather than a “nonne” way; by adding threats and undertakings of what we intend to do, he could make sure that we do not get from the European Union the extension that we have required him to seek if the circumstances arose.

The problem of trust is quite a big one. It would be good if the Government in responding to this debate said that they will not only act on the law but do so in the spirit in which the House of Commons passed it. The noble and learned Lord, Lord Brown, suggested that we would be going cap in hand to the European Council and who knows what terms we could obtain. That is a bugbear. Honestly, either you are in the European Union or you are out of it; there is no middle position that we could be put into. The noble and learned Lord implied—perhaps I got him wrong—that for the period of any extension the terms of our membership would be for the 27 to decide. No, sir, we are either a member with the full rights of a member or we are not in. I am very sad that we are not exercising the full rights of a member any more; I am very sad that, from 1 September, there are important working groups, important meetings of COREPER and important councils in which the British are following the policy of the empty seat. It did the French no good when General de Gaulle tried it; it will do us no good. Wherever we are going to be—in or out, close or far from the European Union—it must be in our interest, until the last possible moment, to exert as much influence as we can on the direction and legislation of the European Union.

That is my answer to the noble and learned Lord, Lord Brown. We can put ourselves in a half-in, half-out position, but the European Union cannot. However, I am nervous that we have not necessarily solved the problem with this Bill—for which I shall vote—because it seems to me that, in addition to the risk that the Government will not act on the Bill, there may be a bigger risk that they will act on it in a disingenuous way and that the purposes set out in it may therefore not be achieved.

Northern Ireland (Executive Formation) Bill

Debate between Lord Cormack and Lord Kerr of Kinlochard

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord Cormack (Con)]

My Lords, the noble Baroness, Lady Deech, reads far too much into this simple amendment, which is unambiguous and makes the point that power should rest not with the Executive but with Parliament. It would require Ministers to report on a Bill’s progress where progress is essential, such as with this Bill. Of course, most importantly, we should not give the Prime Minister of a minority Government, whoever he may be—let us all, particularly those of us on this side of the House, recognise that we are talking about the Prime Minister of a minority Government—the opportunity to suspend our constitutional proprieties.

I should like to make another point. I deplore the fact that the rules of my party have allowed this decision to be protracted over almost five weeks and to be taken by 0.3% of the electorate, a number of whom are 15 years of age; they are entirely eligible to vote, as I established earlier today. Many people do not realise that; I did not realise it myself until two or three days ago. The party in the country has had great power—way beyond what any party should have, particularly when it represents such a tiny percentage of the electorate. I believe that the real constitutional impropriety that the noble Lord, Lord Anderson, seeks to deal with is that of conferring on the Prime Minister of a minority Government—I repeat: a minority Government—the powers to dispense with the services of Parliament and to absolve himself of being answerable to it. As I said on Monday, the Government are answerable to Parliament, which must never be the creature or subject of government. This is a safeguard. We should support it.

[Lord Kerr of Kinlochard (CB)]

My noble friend Lady Deech would have made a marvellous Permanent Secretary. We heard about a dangerous precedent, unripe time and the risk of judicial review. I cannot see that risk; the amendment moved by the noble Lord, Lord Anderson, seems designed to reduce the risk of a situation that might go to judicial review arising.

I support the noble Lord’s amendment. As he said, it is strange and alarming that we should find ourselves in this situation, having to resort to a device to prevent a constitutional outrage—which it would be if Parliament were sent away so that the Prime Minister of the day could follow a course that both Houses of Parliament have consistently and regularly rejected.

To add one more point, I hope that the noble Baroness the Leader—I am sorry she is not in her place—is pursuing with the other place the proposal that we in this House put forward a fortnight ago for a Joint Committee to examine the costs and implications of a no-deal crash-out. In this House, the Leader represents not just the Government but all of us. We put forward the proposal but, to my knowledge, the other place has not yet done us the courtesy of even considering it. I hope that the noble Baroness is advancing our proposal and urging the other place to respond positively to it. I support the amendment.

European Union (Withdrawal) Bill

Debate between Lord Cormack and Lord Kerr of Kinlochard

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Kerr of Kinlochard]

I agree with the reading by the Minister and the noble Baroness, Lady Hayter, of whether one has continuing membership of the EEA after one has left the EU: one does not. However, I am struck by what the Minister has just said about the moment when one leaves. I am not sure that it is at the end of the transition period. I think it may be at the moment when we leave the EU—in other words, in March next year, not 21 months later. I am not quite sure why the lawyers in the EEA, EFTA and the EU should accept that once we have left the EU we still remain in the EEA.

[Lord Cormack]

Write a letter.