Brexit: Withdrawal Agreement and Political Declaration

Lord Trevethin and Oaksey Excerpts

Wednesday 9th January 2019 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a great pleasure to follow the noble Baroness, and I agree with just about everything she said, but I shall address some similar points in my own way.

The withdrawal negotiations were unquestionably always going to be very difficult. They represented a negative-sum game, and we had two significant cards to play. One was money. Inexplicably, we tossed that card away on day one, before the talks really started, so that one has gone. The other card we had to play still just about exists, although it has not been played as it might be. That is the threat of no deal. No deal is bad. It is bad for this country. I entirely agree with much that has been said on the other side of the argument about that.

It is also unquestionably bad for the other 27 and particularly bad for our Irish neighbour, which is taking a central part in the negotiations. That card has been greatly weakened because we failed to make very visible preparations for no deal at an early stage. I am forced to wonder whether the Prime Minister and her negotiating team have played much poker in their lives, because there was scope here for a certain amount of constructive bluffing, which might or might not have been called by the EU negotiators. That scope is much reduced but has not entirely disappeared because, contrary to what has been said by some speakers, it remains the default position that in about 80 days we will come out of the EU on a no-deal basis unless something happens to stop that. Clearly, things may happen in the other place that prevent that admittedly undesirable outcome, but the possibility remains and it is to be hoped that something will turn up in respect of an adjusted and better deal over the next few weeks. Something needs to turn up because the present deal is, I suggest, plainly unsatisfactory and unacceptable. It is not really a deal at all; it is an agreement to enter into an agreement at some point in the future.

I note that reliance has been placed by those who speak for the Government on the existence of a best-endeavours clause. I have spent some time over the years, in various cases, trying to enforce best-endeavours clauses in much simpler, bipartite cases in front of hard-headed commercial court judges. I have not had much luck. They are very nebulous, slippery things. They are, I respectfully suggest—I will listen with great interest to anything the Minister may say about this—simply impossible to enforce in a case involving 27 different counterparties with 27 different sets of interests and involving a rather nebulous arbitration process, as opposed to proceedings in these courts. So something needs to turn up.

We know from this and earlier debates that many in the House hope that what will turn up is referendum mark 2, and I shall conclude my remarks by making some observations about the desirability or, as I see it, the extreme undesirability of a second referendum. I am very doubtful—I agree with the noble Baroness about this—that the proposed second referendum, if the questions that are to be posed in it can ever be formulated, will lead to the result that the campaigners desire. I suggest that the dodgy figure on the side of the Boris bus will be replaced in the second referendum by three other figures: the impressive but slightly condescending Monsieur Barnier, the frankly preposterous Mr Juncker and the unspeakably smug Mr Tusk. The British people have watched those three gentlemen negotiate with our representatives over the last two years and I foresee that they will be asked if they really want to go back to those individuals and kowtow. I am not at all sure that the answer to that question will be yes.

Let us suppose that I am wrong about that. Let us suppose that referendum mark 2 achieves the desired outcome, which would be regarded as a triumph by many in this House and the other place. How would it be regarded by 17.4 million who thought that this issue had been disposed of in 2016? I am sorry to be blunt but I suggest they would regard it as a fix, a stitch-up, a plot against democracy and a monstrous breach of trust. Why a breach of trust? They have, in writing, a document the Government sent to every house saying that this was a once in a generation decision—I emphasise the word “once”. “It is your decision and we will enact what you decide”. If that promise is broken, the consequences will be serious. The question for all of us, which should trouble all of us, is not whether this talk of a plot against democracy is objectively valid. That is an interesting question but I am not addressing it. The question is different. It is: does such talk, in the event of a second referendum, appear sufficiently plausible to be believed by a large part of the 17-odd million who voted to leave? The answer to that question is plainly yes—it would be believed by many millions of our country men and women.

Time does not permit me to develop all the arguments that would be deployed by those whose interests lie in fostering talk of conspiracies and plots, but I shall just identify three or four. First, the EU has form in ignoring and then reversing democratic decisions it regards with disfavour. Ask the French, the Dutch, the Danes, the Greeks and the Irish. Secondly, the recent decision of the Court of Justice of the European Union which held that the Article 50 notification can be reversed will be seen by many as rather odd—convenient for some, but rather odd—given that the Supreme Court, in an entirely proper and carefully reasoned decision in the Miller case, based its decision on a premise that was common ground between the litigants that the notification could not be withdrawn. Thirdly, there is the hapless conduct of the negotiations. It will be asked: were their hearts really in it? Fourthly, there will be difficulties about the formulation of the question or questions to be put in a second referendum. Those difficulties will require the attention of the Electoral Commission and may lead to litigation. They will certainly generate suspicion among the leave contingent.

Where does this all lead? I doubt he has been quoted in this Chamber before, but at the Sex Pistols’ last concert the lead singer said, “Ever feel you’ve been cheated? Goodnight”. If, in the events I am contemplating, that question is asked of the British people and the answer is yes, democratic processes in this country will be poisoned for a generation. Those are stakes even higher than those involved in the Brexit process itself.