I will confine my remarks to Part 5 of this Bill. I find myself swayed by two completely opposite accusations of bad faith. The government accuses EU negotiators of bad faith in seeking to erect ‘unreasonable’ customs barriers between Northern Ireland and the rest of the UK .
Opponents of the Bill say the bad faith is our own government’s. The Withdrawal Agreement set up a Joint Committee to resolve trade disputes; the government have chosen not to use it So, as Ed Milliband argued in his powerful phillipic in the other place, the government was proposing to breach international law for bogus reasons.
I cannot support the regret motion, and would like to explain why.
To my mind, international law is not the main issue. ‘Never before’ say Noble Lords, ‘has a British government sought to break international law’. But never before has Britain faced the problem of extricating itself from as complex a political, economic, and legal structure as the EU. Law has to take account of political reality. As John Maynard Keynes said in answer to legal fundamentalists of his day: ‘What I want from lawyers is to devise means by which it will be lawful for me to go on being sensible in unforeseen conditions’. Noble Lords know very well that not every contingency can be foreseen.
So, My Lords, I ask you to judge the legislation before the House on three different grounds: sufficient reason, motive, and consequences.
On the first,I agree with the argument that sufficient reason has not been established for the override of Part 5 at the government’s discretion. But no noble Lord has mentioned Amendment 66, by which the government has agreed to obtain parliamentary approval before activating Part 5. I think that’s a reasonable compromise between those who think Part 5 is essential and those who think it unnecessary.
Second,I sympathise with the argument that the government signed the Agreement in bad faith in order to meet the PM’s political requirements. However, most Noble Lords have ignored the argument that it was always going to require some bad faith-and legal creativity – to make the Brexit decision consistent with the Good Friday Agreement. When Ed Milliband said ‘A competent government would never have entered into a binding agreeent with provisions they could not live with’ I’m afraid he is setting the bar of competence much too high. Contrary to Baroness Humphreys,deliberate ambiguity is the hallmark of statecraft.
Finally, what will the consequences be? The legal fundamentalists say it will damage our ability to get an agreement because it will damage trust in the government’s word; the pragmatists believe it will force the EU negotiators to come up with a workable exit formula. Time will tell whether the government has calculated the balance of risks properly.
My own feeling, contrary to much noble rhetoric, is that we are still largely in the world of posturing. That is the way EU and many other international negotiations work: public posturing, followed by a last minute outbreak of commonsense.
I think that’s the way it will turn out, and don’t want us to do anything which will weaken the hands of our own negotiators.(550)