European Union (Withdrawal) Bill — House of Lords, 2018-04-30
Topic: International Affairs
John Kerr (Crossbench, Unknown): I shall speak briefly on two technical points. First, the noble Lord, Lord Green, asked whether we would have to pay a price if we chose to withdraw the Article 50 letter. Secondly, the noble Lord, Lord Faulks, asked whether we are confident that we could withdraw the Article 50 letter unilaterally. The answer to the noble Lord, Lord Green, is that given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Of course we could not be charged a political price if we withdrew the Article 50 letter during the period of the two years’ negotiation because we would never have left. We would have exactly the rights of a member because we would never have given them up. There would be no question of opt-outs or rebates being taken from us. Of course, the converse would apply if, having left the European Union, we decided that we wanted to come back. There would then be no chance of securing opt-outs or rebates. But, as a member in good standing, operating under the normal voting rules—the rebate is removable only by unanimity and I rather suspect we would not vote for its removal—there is no question that we would be paying a political price On the question of whether we would legally be able to withdraw the letter unilaterally, the noble Lord, Lord Faulks, who is a much better lawyer than I am—I am not a lawyer at all—said that that would be a matter for the ECJ. With respect, I do not think so. If the Prime Minister of the United Kingdom appeared in the European Council and said that, as a result of an election or a referendum, there had been a change of view in the United Kingdom and that we would like to stay in the European Union, there is absolutely no doubt what the European Council’s answer would be. It is on the record. The President of the Council, the President of the Commission, the President of the Parliament, the President of France and the Chancellor of Germany are all on record as saying that, although they respect our plan to leave, they would rather we changed our mind and stayed. There is absolutely no doubt that the European Council would say yes. It is conceivable that, three years later, a case might go to the European Court of Justice. Were the European Council correct and intra vires when it agreed that the British might take back their Article 50 letter, I have absolutely no doubt how the ECJ would rule in that case when it came up The second point I want to touch on is whether an extension of the two-year negotiating period would, if we sought it, be obtainable. This seems very relevant to the amendment we are considering. If the House of Commons were to choose to adopt the option—it is only an option in the amendment—of putting the deal to the people, it would require an extension. It would be impossible to do that before 29 March. We do not have a referendum law in our statute book; we would have to pass one. There would then have to be a campaign. Realistically, we would be looking at June or perhaps September. We would be looking for, say, a six-month extension Would we secure the necessary unanimity in the European Council for that extension? It is a matter of judgment. In my view, it would depend entirely on the reason we gave. If, for example, we said, "We’d like an extension to carry on negotiating. We’d like to send David Davis across for a few more months", it is conceivable that we might not get the necessary unanimity. If, on the other hand, we were to tell 27 democracies that we needed an extension because the House of Commons had voted in a way that meant there had to be a referendum, or an election, there is no question but that we would get the necessary unanimity—in my view; that is only a judgment. The option in the amendment, and it is only an option, therefore seems reasonable, foreseeable and possible, and I shall vote for it.