My #Remainer’s Diary Day 383: Lord Kerr of Kinlochard, a former diplomat and the author of Article 50 of the Lisbon Treaty, said some important things in evidence given to the Scottish Parliament’s Europe Committee in Holyrood. The session is available on the Scottish Parliament TV channel.
Lord Kerr explained the origins of Article 50 and the time limit it contains. He said that at the convention where it was drafted very few could contemplate any member state being “mad enough to want to leave”. He said he did not think two years put a member state under undue pressure, but found it “odd” that we had triggered Article 59 without having a clear idea where we were going to go, without even an agreed definition inside the Government of the end state, our future relationship with the EU.
He said the friendlier tone of the PM’s Florence speech and the movement on the money issue were an improvement on her 2016 party conference speech and her Lancaster House speech but: “She still hasn’t said what she envisages the long term steady state relationship will be… She hasn’t set out her blueprint. She didn’t say anything about it yesterday.”
He called the situation “a kind of a vacuum”.
He said that the transition as discussed so far by the British as a transition was not a transition at all. “We don’t know where we are going, we don’t know where the other pillar of the bridge is, we don’t know where we are landing… It is not an implementation period… it is a deferral period… The cliff edge is still there, it just comes two years later.” He likened it to postponing the date for executing a prisoner.
He went on to say that refusal to implement new laws or ECJ decisions after March 2019 or the immigration minister’s statement in Manchester that the Government would end free movement on 29th March 2019 were inconsistent with a deferral period.
Asked how likely a hard Brexit was in 2019, he replied that the Government had raised expectations unrealistically. “At some stage the penny is going to drop. At some stage between now and March 2019 it’s going to become clear that Johnson roaring like a lion isn’t actually delivering anything in Brussels; and what we were told during the referendum and since about being able to have our cake and eat it isn’t proving to be the case.”
He said he personally was interested in the alternative that after the penny had dropped the public could wonder whether it was a good idea to leave.
The PM’s insistence that the ECJ must have “no sway” in the UK had caused “strange contortions” such as leaving Euratom.
He said that after March 2019 during the transition we would not be members and would have no seat at the table. He worried that this was not understood, and might not be until it was too late to do anything about it. Until March 2019 we should behave as full members; the government had made a mistake to fail to attend some meetings and concentrate only on the Brexit dossier. Until March 2019 we could take back our Article 50 letter and carry on as full members. But after midnight on the 29th March 2019 we would lose all our privileges and if we wanted to go back in, it would be an accession negotiation.
He said that when drafting Article 50 he would have put in a sub clause about withdrawal of the notice but that had not been necessary because the legal advice he had received when drafting Article 50 was that “if it doesn’t say you can’t withdraw your letter then you can withdraw your letter.” He was not a lawyer himself but was sure the advice was right.
So he is implicitly saying he got top legal advice on this point – as one would expect.
He said we could turn up at an EU Council meeting and say we had changed our minds.
He said this autumn’s drama would be amending the Withdrawal Bill. The country would not take much notice; they (Parliament) would be trying to amend a bill that “is, in my view, defective”. Next autumn’s drama would be the negotiated deal. He could not see “any negotiable deal for which there is a majority in the House of Commons”, saying there were “sufficient hard-line Brexiteers to make it very difficult for the PM to compromise sufficiently to get a deal in Brussels”.
He said there was “certainly a majority against no deal”; a large majority in both Houses of Parliament now thought that “no deal is better than a bad deal”was wrong.
He suggested that when the reality of the situation became clear to MPs, “at that stage I think we could be quite close to an election”.
Lord Kerr said that in his opinion the clauses in the Withdrawal Bill which dealt with currently devolved powers were a subset of the Henry VIII clause powers and would be amended, because currently Holyrood had control of, for example, environmental protection subject only to EU laws, and if the centre [Westminster] took back EU powers over those areas rather than those powers passing to the devolved Government it would for the first time be a breach of the devolution settlement.
He said that if the EU Council agreed a Brexit deal then the Parliament would agree it, because everyone was aware that a cliff edge without a deal would be dreadful. Only a qualified majority in Council was necessary, not unanimity, and ratification by national parliaments would not be necessary.
He said the long term relationship would be different, requiring unanimity in the Council and national ratification. The Wallonia problem could arise, as with the EU-Canadian CETA deal. Areas of most likely difficulty would be where the UK had insulted people, such as the Polish Government over the treatment of Polish citizens in the UK. Poland was unhappy that the country it thought was its closest friend had turned out to resent paying structural funds for Poland and to resent having Polish citizens in its country. But the time negotiations would take meant ratification would not come up until 2024 or 2025.
This sober, rational assessment of the situation was all the more valuable for being from a crossbench member of the Upper House of Parliament and an extremely experienced diplomat.
In London, according to various newspapers, a recent internal Treasury document suggested that the £26bn buffer that Philip Hammond had allowed for in the national finances would be reduced to “single digits of billions”. Officials said that Philip Hammond was facing a “bloodbath” in his November budget.
Mr Hammond’s aim is to reduce the annual budget deficit to less than 2% pc by 2020-21. But recent UK productivity growth has slowed to 0.2%: dreadful in comparison with other countries.
The Office for Budget Responsibility had concluded that its budget forecasts were over-optimistic and was preparing a downward revision of its economic forecasts which would bring them into closer alignment with those of the Bank of England, the Organisation for Economic Co-operation and Development and most private sector forecasters.
Brenda Hale, the first woman member and now also first woman president of the UK Supreme Court, giving her first press conference since being sworn in as the court’s president, was asked what the future relationship should be between that court and the European Court of Justice. Lady Hale replied that it would be “useful” if the Supreme Court was instructed by Parliament to take ECJ judgments into account.
“We will do what Parliament tells us to do. We would like Parliament to give us as much clarity as possible.”
Clarity: everyone wants it, but the Government is unable to give it.