My Lords, I congratulate the noble Baroness, Lady Hayman, and the noble Lord, Lord Sarfraz, on their maiden speeches and for their extreme skill in staying uncontroversial on this most controversial of topics.
I find myself in a curious position today, wanting to defend a withdrawal agreement, parts of which I strongly disagree with. Those of your Lordships who know my background will know that I preferred a different withdrawal agreement, negotiated by the former Prime Minister. The current Prime Minister, and many members of the Government, opposed that withdrawal agreement and the backstop within it because, they argued, there was no way out of it and it would be unthinkable for the United Kingdom to break international law. What was once unthinkable is now government policy. As the noble and learned Lord, Lord Judge, said, we are being asked in Part 5 to give Ministers powers to break the law—powers to override an agreement that was agreed not in some dim and distant past but just a few months ago.
What justification are we offered for that course of action? We have had two. The Prime Minister, in an article, said that these were incredibly turbulent times; it was all done in a bit of a rush and now some problems have come to light. It is also being suggested to us that the EU has been unreasonable. I will leave it to your Lordships to decide whether you believe that the EU’s approach is unreasonable—I doubt I will convince anybody on that point—but I will say that it has been entirely consistent from the word go. The EU has argued that there could be no free trade agreement without a resolution of the issues in Ireland and Northern Ireland and that the UK could never have a Canada-style agreement because of our geographical proximity. The issues that have come to light, and which this Bill seeks to address in relation to customs or exit declarations for goods coming from Northern Ireland to Great Britain, or to state aid, have not materialised overnight: they are in the withdrawal agreement. The Explanatory Notes of the Bill say that they are in the withdrawal agreement, so these are consequences of the agreement that the Prime Minister signed. They are consequences that were pointed out by those of us who had reservations about that agreement at the point at which it was agreed.
As has been made very clear, there was no need to take the course that the Government have taken in this Bill. Article 16 of the withdrawal agreement provides a procedure to use if the agreement leads to economical, societal or environmental difficulties, where parties can take unilateral action.
None of these things is the real reason for what has happened here. The real reason is that David Frost, the Prime Minister’s chief negotiator, asked No. 10 to come up with something that would shift the EU in its negotiating position. My noble friend Lord Hamilton asked why the Secretary of State for Northern Ireland said what he said. He said those words because he was told to say them. The opposition of this House, of five former Prime Ministers and of the most reverend Primate the Archbishop of Canterbury is what Number 10 wanted: it wanted to demonstrate to the European Union the extent to which it was prepared to take a different approach from all previous Governments.
I will end by making two very brief points. First, I am not a lawyer, but you do not have to be a lawyer to think that the rule of law matters. This is not some abstract concept: it has real world consequences. On Friday, Moody’s downgraded the UK’s credit rating; it referred to the weakening of the UK’s institutions of governance in recent years.
Finally, the tragedy of this Bill and the situation that we find ourselves in as a country is that the reason why the Brexit negotiations have proved so difficult is that the EU believed all along that the UK might end up breaching faith. I well recall a meeting with EU officials that I attended with Theresa May, where she asked why the backstop had to be set out in all that operational difficulty. She was told, “Because, bluntly, we do not think you will be there for much longer and we do not trust what is going to follow in terms of living up to any commitments.” That is the tragedy of this Bill. This behaviour was predicted and is one of the reasons why we confront this problem. Let us hope
that we reach a deal, that the Government can withdraw these clauses and that we can find a satisfactory way out of this situation in which we now find ourselves.
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