Examination of Witness
David Lidington MP.
Q1 The Chairman: Good afternoon. David Lidington MP, Chancellor of the Duchy of Lancaster, welcome to the European Union Select Committee’s public meeting on your Brexit-related responsibilities. We understand that we have you until at least 5.30 pm and potentially a bit longer. Thank you very much.
I would like to kick off by asking you to outline and explain those Brexit-related responsibilities. Over time they have been a bit of a movable feast as you have taken more into your empire. How does your role interact with that of the Prime Minister as well as the Secretary of State for Exiting the European Union?
David Lidington MP: Thank you, Chair. I would divide my role into three parts. First, as Minister for the Cabinet Office I have direct responsibility for the overall implementation of government policy, which means that you end up having fingers in a large number of pies and membership of, I think I can accurately say, significantly more Cabinet committees than anyone else in the Government. Since I took up my current appointment, I have sat on the main EU Cabinet committee, EUXT (Strategy and Negotiations), which the Prime Minister chairs, although in practice more often than not I have ended up chairing on her behalf the meetings of the key sub-committee on implementation and preparedness, currently EUXT(P). That was preceded by EUXT DPLD, and there have been various configurations and acronyms. I have basically chaired those meetings, which have brought together Ministers from key departments to talk about how to make the practical preparations for departure and contingency plans.
I have chaired a separate Cabinet committee on the external trade working of exit, getting reports from the Trade Secretary about progress on the role of EU FTAs and the priorities for future FTA negotiations. Sometimes, as with domestic policy, the Prime Minister asks me to undertake some less formal brokering, away from normal Cabinet and committee meetings, when there is a difference in opinion between Ministers and we want to try to find an answer to that.
Secondly, on devolution, which I think the Committee will want to come on to as a separate head of our session today, I have direct policy responsibility overall in the Government for the constitution, including for devolution in all three devolved nations in the UK. In that capacity I chair the Joint Ministerial Committee (European Negotiations). I have a lot of contact with the Scottish and Welsh Governments and to a lesser extent, sadly, because of the lack of an Executive, with the Northern Ireland Civil Service in the absence of Ministers there.
Thirdly, because of my ministerial history, which the Committee will be aware of, I have a pretty good contact book around Europe, so the Prime Minister asked me, when she first appointed me to this role, to support her and her successive Exit Secretaries in the work that they were doing. For example, I have been to a number of member state capitals, to the Commission and on a number of occasions to the European Parliament to explain the UK Government’s position and to understand the position of my interlocutors so that it could be fed back to discussions around the Cabinet table here.
Q2 The Chairman: Has the division of responsibility worked? Has DExEU as a stand-alone department really worked in the way that you envisaged? You have been in the role for nearly 18 months. Alongside that, one notes that several other countries, such Canada and Australia, have their trade departments under their departments for development as part of the wider FCO umbrella. What would you think of that as the future architecture? Perhaps you could answer the first part first.
David Lidington MP: On the first part, the role of DExEU, the Prime Minister made it clear when she stood for election as Conservative Party leader in 2016 that she would establish a separate self-standing Department for Exiting the European Union and the machinery of government changes that would follow that commitment. DExEU and the Cabinet Office Europe unit, which provides the secretariat advising the PM on her conduct of negotiations, have worked out how to work together. I do not think it is a great secret that, as would be normal in such a novel initiative in Whitehall, there were a few bumps in the early stages, but the relationship is constructive and close now. The Europe adviser and the Cabinet Office Europe unit are there to give the PM the best possible advice to support her in her European engagement, both bilaterals and European Councils, and to provide the secretariats of the relevant committees with timely cross-government decision-making, trying to gently co-ordinate the work of other departments to try to ensure that there are some agreed priorities that everyone is working to and that there is shared understanding of timetables and the like. DExEU is in charge of the Government’s domestic preparations for Brexit in both a deal and a no-deal scenario. It has overall responsibility for legislation and making preparations for the negotiations to implement the details of the future framework.
On your question about broadening out the role of the FCO, there is a case for it. As you say, in some other European countries either development or international trade, or both, are under the ambit of the FCO. Clearly it would be a matter for the incoming Prime Minister to take any decisions about the machinery of government, and there would be pros and cons to giving additional responsibilities to the FCO.
The Chairman: There is a Division in the Commons. I assume that you do not need to take part in it.
David Lidington MP: It is a free vote.
The Chairman: We are delighted that we can continue with you. We got the impression that under the current plans the negotiations on phase 2, the future partnership part of the withdrawal agreement, would be undertaken by DExEU. Is that correct?
David Lidington MP: Under current plans, yes.
The Chairman: But they may change.
David Lidington MP: I do not think I can usefully pre-empt what a new Prime Minister might decide to do.
The Chairman: But under current plans DExEU would lead on the future partnership.
David Lidington MP: Yes.
Q3 Lord Jay of Ewelme: Thank you for explaining the disciplined arrangements for the Cabinet and Cabinet committees. I have to say that from the outside it has not always looked exactly as straightforward as you describe, with some decisions being taken in public and some in private, and a certain amount of roulement of members of these Cabinets and Cabinet committees over the last year or so. Could you tell us a bit more about how effective you think that structure has been in enabling some really rather difficult decisions to be taken and policy to be evolved over time? Have there been more coherent discussions in Cabinet than have sometimes appeared to us?
David Lidington MP: The discussions in Cabinet have been open, and most of the major decisions have been taken after long discussion in full Cabinet rather than in one of the Cabinet committees. I think that was inevitable, given the seriousness of the issues under discussion. This Committee would not expect me to go into detail about exactly what was discussed inside the Cabinet room, but I will not hide from the Committee that in all political parties there are known differences of opinion on the European issue and there always have been—I am looking at Baroness Suttie here. It is also the case that making policy decisions and legislative decisions in the context of a hung Parliament has posed particular challenges. There is no getting away from that, and that has an influence on how these things are handled.
Q4 Lord Jay of Ewelme: Can I follow up on that? You said, and I entirely understand this, that you cannot say what will happen under a new Prime Minister, but I wondered whether you could say what advice you would give to a new Prime Minister about what would the right structure would be for taking these decisions forward in an effective way in future.
David Lidington MP: That is probably something that I might want to reserve for the new Prime Minister if he asks me.
Lord Jay of Ewelme: I see. Perhaps we will leave it there.
Lord Teverson: I would like to understand whether you felt a certain envy for the other side, which seemed remarkably co-coordinated. They had the very simple task of co-ordinating just 27 member states whereas that seemed much more difficult on our side. Perhaps the public perception and indeed the negotiation perception did not help in getting to where we have got to.
David Lidington MP: I think it took a while for the perception to take root in London that this was a very different type of negotiation from what we were used to, which was internal EU negotiations with horse trades and, while not necessarily smoke-filled rooms, leaders going in and out of each other’s delegation rooms in the Council building in Brussels to hammer out agreements. This was much more along the lines of an EU external negotiation with a third country. There is no doubt in my mind that the Commission was keen on that approach from the start and that the European Council basically accepted that. What helps to account for the discipline on the EU side is the fact that they all have politics too. It is an error for UK politicians and the media in this country to assume that every European capital is consumed with thought about Brexit. They ain’t. They have lots of other things that are taking up the bandwidth and have a higher priority.
Q5 Baroness Kennedy of The Shaws: Minister, I know from one of your previous roles, when you were Lord Chancellor and Minister for Justice, that you were very interested in constitutional issues and the ways in which they impact on politics. The fixed-term Parliament issue was put together at the time of the coalition Government. You spoke just now about your role relating to constitutional matters but also about the effects of having a hung Parliament. Has not the fact of there being a fixed term also had a detrimental impact on some of the background to the negotiations?
David Lidington MP: Yes, it has. That Act, as members of the Committee will recall, was devised really to assure both parties in the coalition Government that the other was not going to pull the rug from under them if one or other partner was unpopular. Because that has been put into primary legislation, it has significantly reduced the power of any Prime Minister to exercise discipline over their own party and over the majority of the House of Commons. It is simply not possible now for a Prime Minister to declare that a particular decision in the Commons shall be treated as a Motion of confidence because it will not lead to a general election unless the resolution, as laid down in the Fixed-term Parliaments Act, is carried.
Baroness Kennedy of The Shaws: Thank you. That is my position too.
Q6 Lord Cromwell: I invite you to share your reflections on the cross-party talks with the Labour Party. Did they start too late? Were the adversarial tendencies too strong? In short, why were they not successful?
David Lidington MP: I have had discussions with colleagues in the European Parliament and people in other Governments, of Germany in particular, about this. If you talk to Dutch or German politicians, they express astonishment that there were not cross-party talks from the beginning. This goes back to the fact that our political culture is traditionally much more adversarial than in those two countries. After a general election has taken place in Germany and other European countries, it is routine for there to be a period of some weeks during which party leaders talk to each other about potential coalition or confidence-agreement arrangements.
Lord Ricketts: Up to a year.
David Lidington MP: Lord Ricketts is right; it could be up to a year. The Netherlands and Belgium have gone for very long periods without more than caretaker Governments. So the political culture is very different in those countries. France is probably the nearest equivalent to the UK in how people think about their politics.
It is also the case that both main political parties here have had difficult times. The 2017 election result was clearly a great disappointment to the Conservative Party, while—I do not want to get party political in this evidence session but this is a matter of record—there was major opposition to Mr Corbyn’s leadership from within the ranks of the Parliamentary Labour Party. For Conservatives, Mr Corbyn is seen to be particularly hostile and rather a different character from, say, Mr Blair. I think that is valid; I do not think Mr Corbyn would deny that he would see himself as very different from Tony Blair.
There were those difficulties from the beginning, and the Prime Minister, and the Government too, certainly tried to find a way through. We felt that there was a way through. We felt that the deal was a good one and that it deserved support from the Conservative Party in the House of Commons and from our supply partners, the DUP. As we know, that did not happen and the Prime Minister offered to sit down with other political parties.
How did those talks go and why did they not succeed? First, they were taken very seriously by both sides. Looking at the line-up on both sides of the table, on the government side were myself, the Chancellor of the Exchequer, the Exit Secretary, the Environment Secretary, the Chief of Staff to the Prime Minister and the Business Secretary. Olly Robbins, the chief negotiator, was there to give expert advice and history.
Lord Cromwell: I am sorry to interrupt you, but with such a stellar cast why did they not succeed?
Baroness Kennedy of The Shaws: We have only heard the cast on one side.
David Lidington MP: It is very important to say who was on the Labour side. There was the shadow Chancellor, the shadow Exit Secretary, the shadow Environment Secretary, the shadow Business Secretary and some of the key staff from the Leader of the Opposition’s office. I can remember the shadow Chancellor saying at one meeting, “We would not invest so much senior time and energy in this were we not serious about it”. There was mistrust on both sides going into the talks but I think that both sides genuinely tried to find a way through.
The reason the talks did not work was a mixture of policy and politics. On policy, there were some very difficult issues. The Government made some serious offers of compromise to the Opposition, particularly over the content of changes that we might seek to the political declaration and changes that we might make to domestic legislation, including on issues such as workers’ rights. The Government’s approach to the talks was always on a without-prejudice basis and on the assumption that, if we came to an agreement, it would result in the Opposition being willing to facilitate the passage of the withdrawal agreement and implementation of the Bill and associated legislation—and see it all the way through, not just at Second Reading.
Customs was a very difficult issue. Both parties had different positions on customs that were in published policy documents and were long-standing and oft-repeated commitments. On other issues there were fewer differences than initial perceptions had suggested. However, I had forgotten that in opposition I always knew less as a shadow Minister than the Minister of the day because I did not have access to the day-to-day papers and was not able to follow their evolution. In opposition my rule of thumb was that you had to learn to ask the right questions. It suddenly hit me at the second meeting that the opposition spokesman would not be familiar with the ins and outs of the history of the negotiations. We got to a position where on some issues we explained that the reason the political declaration was worded that way was that that was as far as the Commission was willing to go, not because we were dragging our feet, and we made progress in trying to get some cod understanding of that.
On the politics, clearly there were tensions and suspicions in both parties. On the government side it was felt that there was no point in making a concession that wins you a number—even a large number—of Labour Party votes in the Commons if it then loses you more Conservative votes. You must call witnesses from the Labour Party side to hear directly from them but I do not think that I am being unfair in saying that there are some Labour parliamentary colleagues who want to get Brexit done and avoid a second referendum, and there is another group of Labour MPs who are very passionately in favour of a second referendum and keep pushing the Labour Party leadership to nail its colours to that mast. I have had meetings with delegations from both those tendencies in the Labour Party over the last six or eight months, so I know that those differences exist. The Labour Party too was looking to its own internal politics and at how to reconcile differences of approach there. At the end of the day, it was the Leader of the Opposition who wrote and said that he wanted to bring the talks to an end without agreement.
Q7 Lord Cromwell: Do you think that if the day after the referendum there had been a move towards these sorts of talks, things might have gone a bit differently, or is that a naïve hope?
David Lidington MP: There is a line in one of the Narnia novels where Aslan says to Lucy, “No one is told what would have been”. Running those counterfactuals is very difficult. One has to recall that the day after the referendum David Cameron announced that he was standing down as Prime Minister. So it is a question that you might want to ask the Prime Minister, if not now then perhaps in September, when she is free of collective responsibility. For whatever reason, the decision was taken at the time to press ahead in the way originally envisaged. One needs to think back to the political mood in this country. Immediately after the referendum I think there was greater consensus than there is now about the outcome being legitimate and the fact that as a country we needed to get on and do this. However, it is for historians to say exactly—
Baroness Kennedy of The Shaws: That is not my memory of it.
The Chairman: You are a historian, so you will no doubt take a long view yourself.
David Lidington MP: In due course.
Lord Soley: There seems to be quite a lot of material here for a PhD for someone. Maybe you will do it in due course. I want to follow up a little on Lord Cromwell’s question. Obviously you cannot speak about what the next Prime Minister will do. There are the political sensibilities that you have talked about, but it seems that one lesson is that talks should begin at an earlier stage, making them much more exploratory at first. Had that happened, it might have been easier.
As you indicated, there were some policy issues which, in my judgment, were almost insurmountable, but there was the possibility of talks. I also wonder whether there should not have been some all-party work on certain issues—even the political declaration, for example—to parcel it up a bit. Is there any advice that you might give to a future Prime Minister? You might say, “Have some exploratory talks with parties at an earlier stage to see where agreement might lie”. I am sure that you and your colleagues thought about that.
David Lidington MP: We did.
Lord Soley: I actually felt that the talks would not work but you were right to try—I do not question that. However, British parties do not work in the same way as the continental parties, and that is a fundamental difference which I am sure you are aware of. It seems to me that this is such a national issue that there should have been some attempt to get a cross-party approach to some aspects of it, as that might have built up relationships. It would not have solved the big questions of whether we should be in or out but it would have enabled us to deal with the issue rather more effectively and perhaps would have made the British Parliament and the British political system look a little less incompetent, because frankly we do not come out of this very well.
David Lidington MP: If I project myself back to 2016, let us not forget that, while the Cameron Government had an overall majority, it was only a small one. The Labour Party leader had just stepped down after the 2015 general election and the party was then, at the end of that year, in the process of electing Mr Corbyn, who represented a very different style of leadership from that of Mr Miliband or his recent predecessors. The Conservative Party was in the throes of a leadership campaign, as were the Liberal Democrats. The Lib Dems were feeling very bruised from the 2015 election outcome. I am not sure that there would have been the possibility of somehow bringing the political parties together, at a time when the aspirant leaders of all three UK-wide political parties were looking to their own memberships and hardcore supporters in the context of leadership struggles.
However, there are lessons that we should learn about greater involvement of Parliament, which provides the formal mechanisms for getting around the inevitably adversarial character of inter-party discussions. Let me be frank: this is not the Government’s policy, but even if we were to end up with an abrupt departure on WTO terms, that can be only the start. That is the bog standard, bare minimum for international trade conditions and anybody who has any interest in this country’s prosperity knows that, in those circumstances, you would want to move towards an FTA with our most important trading partner.
Whether the future negotiations take that form, or whether we leave with a deal and are seeking a new partnership with the EU, Parliament needs to be more involved in future. That probably has to involve some formal structures and systems for regular reporting back to the relevant parliamentary committees.
Lord Soley: In a way, a special Select Committee on this might have brought things together a bit for the future.
Baroness Suttie: I want to ask another “benefit of hindsight” question. Understandably, you have talked about the situation immediately after the 2016 referendum, but I would like to repeat the question about the situation immediately after the 2017 election. First, at that point, when the majority was lost, should there have been more cross-party talks? Secondly, with the benefit of hindsight, do you think that triggering Article 50 when there was no clear definition, even internally within the Conservative Party, was an error?
David Lidington MP: One has to remember that there was enormous pressure to trigger Article 50, coming from not just the Conservative side of the House. For the most part, the Labour side also wanted to get on and see that happen, although it is perfectly fair to say that the Liberal Democrats held a different position. In the aftermath of the 2017 election, when politics was again looking very fragile, the pressures were there to get on with this. There was still a very strongly held view that 17.4 million people had voted to leave and that, although the outcome was close in the election, it was decisive. Frank-Walter Steinmeier said the day after the referendum that it was legitimate. We should not underestimate the concern there has been in the House of Commons, even from people like me, who campaigned and voted to remain, that to be seen to not act on a referendum which we had said at the time would be decisive would do some serious damage to what is already pretty fragile public confidence in our democratic institutions.
The Chairman: Thank you. We will move on now.
Q8 Baroness Armstrong of Hill Top: Good afternoon. Very few people talked about Northern Ireland and the Irish border during the referendum campaigns, but it has clearly taken centre stage in the negotiations and the discussions along the Corridor on the withdrawal agreement. Along with the Secretary of State for Northern Ireland, you have been largely responsible for the negotiations with the Irish Government. This Committee met Simon Coveney a couple of times and I know that you have been the main conduit between him and the British Government. Can you talk us through your bilateral relationship with the Tánaiste and the British-Irish Intergovernmental Conference? Where do you think the relationship with the Irish Government is at the moment?
David Lidington MP: I have both formal and informal roles here. Formally, I have the government responsibilities you referred to. I am the UK co-chair of the British-Irish Intergovernmental Conference and in practice I have represented the Prime Minister at every meeting of the British-Irish Council since I took up this office. I met the Taoiseach at each of the BIC meetings. The BIIGC obviously has a particular role under the Belfast agreement. It has met three times since January last year, most recently in May 2019. We are planning another meeting later this year.
Less formally, I began to establish a closer working relationship with the Tánaiste in particular during 2018. It was a logical thing to do. In many respects, he is the opposite number of about four UK Ministers. As number two in the Government, he is my opposite number, but he is also Foreign Minister and the point man for Northern Ireland, and therefore talks a lot to the Secretary of State for Northern Ireland. As he has Brexit responsibilities, he has also talked to successive Brexit Secretaries.
Simon Coveney and I have tried to establish a working relationship which allows us to talk frankly to each other in private, to understand each other’s positions and to try not to spring surprises on one another. That relationship has enabled the Government here to have a better understanding of Irish concerns and priorities. I hope that it has enabled Simon and his colleagues to have a better understanding of some of the internal politics of the UK and UK Government priorities, in a way that does not rely on mediation through the press.
Baroness Armstrong of Hill Top: I think we all need that, though.
David Lidington MP: Very much so. I cannot emphasise enough how important and delicate this question is.
Anyone who has had the privilege of getting to know Northern Ireland—for four years I was the shadow spokesman for Northern Ireland when my party was in opposition—will be very aware that the key to peacemaking is the reconciliation of different identities. Therefore, the union of the United Kingdom now relies on some people who do not identify as British or unionist continuing to assent to Northern Ireland as being in the United Kingdom.
In so far as there are figures on this, about 44% of the population describe themselves as British and about 44% as Irish, and there are about 12% in the middle who do not particularly align either way. There is a demographic balance but a lot of people who think of themselves as Irish are perfectly okay about living in the UK. They think, “Let sleeping dogs lie. The border makes no difference to how I live my life or how I think of myself as Irish”. We, and the incoming Prime Minister, will need to be aware of the fact that that balance is very delicate indeed and that the border has a profound political, not just economic, significance.
Baroness Armstrong of Hill Top: Perhaps I can just dip into some of those issues a little more. The BIIGC has looked at the common travel area, as have our Government and the Irish Government. We understand that the arrangements will persist, even with no deal, but perhaps you could reassure us about that.
David Lidington MP: The CTA long predates the Belfast/Good Friday agreement and, for that matter, even the UK’s and Ireland’s membership of the EU. One of the first things agreed with the Article 50 task force was that the common travel area would continue. The Tánaiste and I signed a memorandum of understanding earlier this year in which we agreed not only the common travel area but that the rights that appertained to each other’s citizens would continue in each other’s jurisdictions, in whatever circumstances.
Q9 Baroness Armstrong of Hill Top: You have already mentioned identity. I met someone recently who was originally very involved in the negotiations around the Good Friday agreement—as you can imagine, I know them all. They said, “What people in England in particular have not understood is the importance of identity”. I gather that in the May meeting of the IGC you discussed this and talked about the ongoing protection of the identity/citizenship provisions of the Belfast/Good Friday agreement and the unique challenges that the UK’s exit from the EU presents. Can you elaborate on the sorts of commitments that were made at that meeting and where you see them going?
David Lidington MP: As far as the British Government are concerned, we are absolutely committed to maintaining the CTA, to protecting the human rights that UK and Irish nationals enjoy when they are in each other’s state, and to ensuring that there is no hard border of any kind between Northern Ireland and the Republic of Ireland. Clearly we can make preparations for life after the EU, in so far as the power lies with the UK to take decisions, but we cannot take decisions for the EU 27. Of course, at the heart of the negotiations that led up to the joint report in December 2017 was how one reconciles the obligations that Ireland is under as a consequence of its continuing membership of the European Union with the mutual obligations that the UK and Ireland have to each other as a consequence of the Good Friday agreement and things such as the common travel area that preceded it.
Baroness Armstrong of Hill Top: One of the major ways in which the Belfast agreement and the ensuing relationship were agreed was the making of a good relationship between the UK Government and the Irish Government. How do you think Brexit is affecting, and will affect, that?
David Lidington MP: There is no doubt that Brexit has put the bilateral relationship under strain. There are difficulties that have to be worked through in trying to effect the reconciliation that I referred to a moment ago. There is also no doubt that for people in Northern Ireland who think of themselves as Irish, there is a worry that it might become more difficult for them to be comfortable about being Irish within the United Kingdom jurisdiction if we are not in the EU and Ireland is.
Having said that, it is important that we put in place a set of mechanisms to ensure that there remain not just close but structured close bilateral relationships between London and Dublin post exit. Both the Taoiseach and the Tánaiste have come up with some very interesting creative proposals for formal structures—perhaps having an annual summit of the Taoiseach, the Prime Minister and a group of senior Ministers from either side. We could perhaps look at the early years of the Franco-German treaties and ask ourselves whether there are lessons there that we can learn about trying to have a strategic and structured bilateral relationship that will help to safeguard all the progress that we have made. People look back to 2012 and 2013, with the Queen’s visit to Ireland and the President’s return visit here, as particular high points. It is very important not just that this Government but their successor put a lot of effort into maintaining that relationship.
Those of us who are old enough to remember the Troubles, even if we were not living in Northern Ireland at the time, never want to see them come back. You can walk round the memorial garden at the PSNI headquarters and see the names recorded on the plaques of the police officers who lost their lives from the 1960s and through the 1970s and 1980s in particular but into the 1990s as well. The death toll was horrifying and the pain is still felt by victims on all sides today.
Baroness Armstrong of Hill Top: What my friends now say is that what people did not realise was that what we managed to do in the Good Friday agreement was to make identity not matter and that what we have done with Brexit is to make it important again. I do not expect you to comment on that but it might be a good thing for the new Prime Minister to reflect on that.
Q10 Lord Jay of Ewelme: This question very much follows up on what Baroness Armstrong has been asking. I attended many European Council meetings under John Major and Tony Blair at which the private, underneath-the-radar conversation between the Prime Minister and the Taoiseach was as important as the substance of the European Council. My question is: how do we replace that sort of ability to have completely private and frank discussions between the two in a context in which it is not known that they are meeting? Do we still need to do that and how do we do it?
David Lidington MP: I would like to say a word of reassurance, given Baroness Armstrong’s last comment. Having worked closely with the Prime Minister, I know of no one at a senior level in politics who cares more deeply about maintaining peace in Northern Ireland, the progress that has been made and the public assent for the union in Northern Ireland. Often it has been conversations with some of the more moderate nationalist community groups that have made the biggest impression on her.
Turning to Lord Jay’s point, I very much believe that we need to contrive a way of continuing to have those conversations when Prime Ministers and Taoisigh will not be meeting European Councillors any more. That was very much what lay behind the Tánaiste’s thinking about structural co-operation for the future. At the moment, we have not just the European Council meeting several times a year but British and Irish Ministers covering all different portfolios who are meeting all the time in the margins of Council of Ministers meetings. There are some significant Irish political players in the European Parliament as well.
We will have to reinvent these ways of doing business in different forms. So while I think the summit is a start, I referred to the Franco-German partnership because we need to look at how to ensure that awareness of each other’s priorities and view of the world is known about and taken into account simply in the way that we do business, and not something that is left until there is a crisis. Whether that means Civil Service exchanges or having a regular pattern of bilateral meetings of Ministers with different portfolios I do not have a view on, but we need to sign up to the priority of having such structures.
Q11 Lord Whitty: We all recognise the importance of reassurance and guaranteeing that the border remains open and the importance of the border in Irish politics and Anglo-Irish politics. It is nevertheless illogical to have included the Irish border in a withdrawal treaty. Was there not another way of dealing with it? I know there would be resistance in Dublin to a bilateral agreement but what about a European agreement that was separate from the withdrawal treaty? In reality, we have ended up with a situation where it has been the Irish border, above all, that has held up any deal by this Government. Was there any talk of dealing with that somewhat separately? Perhaps cheekily, I might ask whether the Government’s position was made more difficult by post-2017 reliance on the DUP and the fact that Northern Ireland appears to be represented as strongly hard Brexit when in fact the Province voted significantly in favour of remain. Their views and the views of Northern Irish business and others are completely overridden by the fact that we have become hung up on the Irish border in this context. Was there not another way of dealing with it—with a common travel area writ large?
David Lidington MP: There are several points there. First, to some extent, I cannot speak with detailed knowledge because some of the key decisions that led up to December 2017 joint report was while I held other posts in government. That was not the role that I have now so I was not as centrally involved in those negotiations as I became when I undertook my current responsibilities. Lord Whitty is quite right that since it is a key principle of EU doctrine that you cannot construct a permanent relationship with a third country on the basis of an Article 50 agreement—that has to be negotiated under Article 218—the way it tried to treat Northern Ireland was at odds with its own legal interpretation. The way in which the Commission justified that was to say that it was proportionate to treat Northern Ireland as a special case because the Irish issue was relatively small in terms of the EU population, EU GDP and so forth and it was also necessary to preserve peace in Northern Ireland. It is not for me to cast aspersions on Council or Commission legal services. They produced advice of that kind and invoked doctrines of proportionality and necessity to justify the position. That then led them on to resist very strongly, until the last minute, the application of the proposed customs arrangement in the backstop to the whole of the UK rather than to Northern Ireland alone. I say in passing that that is another reason why the EU 27 do not want the backstop a moment longer than they might possibly have to have it.
Could it have been handled differently? My reading of it is that the Irish threw everything they had in 2016 and 2017 into getting that particular arrangement in place. They probably called in every favour that they were owed in Brussels. Those who work in the EU know that Ireland has been a very loyal, very communautaire member state over the years. It had people in very senior roles such as President of the European Parliament and Secretary-General of the European Commission. It punches above its weight in European institutions. The Irish were very focused on this and they were able successfully to invoke a duty for the Commission and the other institutions to be seen to be looking after the interests of small member states. It became the principle. It said, “If we let Ireland down, then what will that do to how we are seen in Slovakia, Slovenia, Croatia or wherever?” That was going on.
The Commission then made a major mistake in February 2018 when it published its proposal for the customs arrangement. Lord Jay asked about the DUP confidence and supply agreement. It is true that in Dublin and, to some extent, in the European Parliament in particular, there was an interpretation that the confidence and supply agreement meant that the British Government was parti pris. I can only say from my experience that that was definitely not the case. For example, Northern Ireland inter-party discussions have always been kept completely ring-fenced from confidence and supply matters, but that perception grew. Two other things were at work. One was that of course the 2017 general election result meant that there were no nationalist representatives at Westminster for the first time in decades. There were just abstentions from Sinn Féin members who were elected and the defeat of the SDLP members was a major blow. Their participation, not just in a formal sense but in committees and just in talking in the tearooms, in the all-party groups and so on was a major loss.
Secondly, the European institutions, the Commission in particular, misunderstood unionism. I do not think they got, or get, the importance of unionism as a felt identity by the greater number of people living in Northern Ireland, and the Commission grossly underestimated the way in which unionism is central to the Conservative Party’s conception of itself. I remember saying to counterparts in other European Governments and to the Commission and European parliamentarians about the version that was published in February 2018—the one that the Prime Minister said no British Government could ever sign up to—“Be in no doubt: that is something that I could not sign”. No one but the most pro-remain Minister in the British Government could ever put their name to it, because it flies against a fundamental principle of how we think about the United Kingdom, and it has a read-across beyond Northern Ireland to Scotland.
The Chairman: Thank you. We need to move on to devolution but we have one final short question from Baroness Neville-Rolfe on Northern Ireland.
Q12 Baroness Neville-Rolfe: This has been very interesting and perceptive, but in your view how can the impasse over the Irish border be resolved? Have you had engagement, perhaps in your role as informal broker for the PM, with the Northern Ireland political parties on these matters, or indeed people who were involved in the Good Friday agreement, here or elsewhere, who can help, as you have suggested, to move things forward?
David Lidington MP: I do not think there are easy panaceas; if those existed, they would have been found. However, I think that while alternative arrangements are derided, they should not be. There are things that could be done with technology, though we also need to acknowledge that the obstacles are real when it comes to things like phytosanitary checks on livestock, and that even if you have the best technology you still have to address the issue of the need for legal derogations from normal EU legal rules—for example, requiring all livestock and food products to be checked at the border—and you have to deal with enforcement. We know that there is a commitment on both sides not to have cameras or any other infrastructure on the border, and, frankly, they would be blown up or ripped out if anyone tried to install them, but there is the issue of the extent to which, even if you had a requirement to comply with rules and make declarations away from the border, you would get compliance from the nationalist side if they believed that in some sense it was adding to the importance of the border. So there are some pretty big political hurdles there.
To Baroness Neville-Rolfe’s point, if we could get the Northern Ireland Assembly and Executive and power-sharing back and operating again, I think that would make a difference. Having Northern Ireland institutions, which on a cross-community basis took a view on some of these issues, can only be of help in trying to overcome the problems.
Baroness Neville-Rolfe: I very much agree. I would say that the scale of the trade across the border is not actually that great, having operated there, so the thing is to find a way to bring people together. As you have suggested, if you could get a government in Northern Ireland, that could lead to a big breakthrough.
Earl of Lindsay: I shall start off with a two-part question. First, what do you see as the necessary consequences of Brexit for devolution within the UK and the strength and stability of the devolved nations as a part of the UK? Secondly, would you explain the various structures in place to address those consequences through intergovernmental co-operation? Could you describe how those different structures interact with each other and whether they are effective and could be made more effective?
David Lidington MP: On Lord Lindsay’s first point, there is an overarching political challenge in that two nations of the UK voted to leave and two voted to remain. For any UK Government, managing that reality is difficult. It is important that the Committee remembers that Scotland and Wales voted in different ways in 2016 and had devolved Governments who had different approaches to the union.
I do not think the Scottish Government will take it amiss if I say that their overriding strategic objective is Scottish independence and everything else is tactical. They might quibble on that latter point but in my view it is a fair assessment. Those who seek separatism will look to exploit the Brexit debate to their advantage. The challenge that we are presented with as a result of leaving the EU is how we allocate powers and competences to act that were exercised in Brussels and will now return to the UK, and how in particular we manage the fact that, under a strict reading of the devolution Acts, some of those powers would flow to the devolved Governments and Parliaments and others to the UK, although the 1998 settlements were drafted on the assumption that those powers rested in Brussels and would stay there indefinitely. I suspect that the authors of the Scotland, Wales and Northern Ireland Acts never actually thought through what would be done with these powers in the event of the UK ever leaving the EU. That is the dilemma that we have.
On the structures that we have in place, the Joint Ministerial Committee (EU Negotiations), JMC(EN), reports to the Joint Ministerial Committee (Plenary), JMC(P), which is chaired by the Prime Minister and to which the First Ministers come. That meets less frequently, probably a couple of times a year, but one of the changes that I made was to introduce monthly meetings of the JMC(EN). I have also established a joint ministerial forum on European negotiations that is co-chaired by junior Ministers from my department and DExEU. That brings in other government departments so that it can go sector by sector through issues of concern to the devolved Administrations.
In addition, since the creation of the Cabinet committee on exit preparation, EUXT(P), the one that the Prime Minister chairs but in practice I tend to chair on her behalf as deputy chair, the devolved Administrations always attend the official-level meetings that shadow that committee, and we have established a principle that devolved Ministers are invited to it where we are discussing matters that involve devolved competence. Mike Russell for Scotland and either Mark Drakeford or Jeremy Miles have been to a number of those Cabinet committee meetings and expressed the views of their Governments there.
In addition to that, there is a very wide programme of work involving not just Cabinet Office officials but officials in different government departments talking to their counterparts in Wales, Scotland and the Northern Ireland Civil Service about how we manage this transfer of competences from EU jurisdiction to devolved or UK Government jurisdiction.
Earl of Lindsay: Do you think you now have the optimum structure of bodies and interaction between bodies, or could further improvements be made to make some of the intergovernmental discussions even more effective?
David Lidington MP: That is something we are looking at under the terms of the review of intergovernmental relations that the JMC(P) commissioned at the beginning of 2018. One of the five areas of policy being explored in those discussions is the machinery of government. We are looking at whether we need to supplement or replace the current structure of JMC committees. While structures are important, though, this is also about relationships and working cultures. Some Whitehall departments are better than others; Defra, if I may single out one department, has to have contact all the time with Scotland, Wales and Northern Ireland because, while fisheries and agriculture are almost entirely devolved, Defra is still the negotiating body for international agreements covering those issues. Other government departments in Whitehall have less day-to-day contact but need to establish working cultures so that, on the occasions when they need to have contact, they understand the sensibilities and how they need to operate.
Earl of Lindsay: I completely agree with what you say about the importance of relationships. I would like to ask you about the Prime Minister’s commitment to enhancing the role of the devolved Administrations in the negotiations about a future relationship with Europe and what that means in practice.
David Lidington MP: That is another of the issues that fall between two headings of the intergovernmental review—the machinery item and the item of dealing with international questions—and clearly it will be a matter for decision by the incoming Administration. What has always seemed to me the logical way forward is to create a system for that future negotiation that borrows from practices that we established in handling EU internal negotiations, such as fisheries talks, where devolved competences were involved. We had devolved Ministers and devolved officials going out as part of the UK delegation, and occasionally the devolved Minister would take the UK seat in the room and have the UK nameplate, on the understanding that they took the agreed UK line.
What I treat as a principle that needs to be defended is that under all three devolution settlements, external relations and the negotiation of international agreements remain a reserved competence. Ultimately it is for the UK Government of this Parliament to determine the UK national interest, but of course we need arrangements where we consult and take careful account of the views of the different devolved Administrations and Parliaments.
Earl of Lindsay: Lastly, I have a question that flows from your earlier point about the importance of having greater involvement of the Parliaments in the process to date but also about how we go on from where we are now. We have established an interparliamentary forum on Brexit involving the Brexit scrutiny committees in the Lords and the Commons but also the equivalent committees from the devolved Parliaments. Do you see that as a useful move? Would you encourage greater and additional parliamentary activities? The backdrop to this is that for 10 years now various Commissions have successively recommended that there should be much greater interparliamentary co-operation and joint working across the UK, yet for 10 years very little has happened in response to those recommendations.
David Lidington MP: I am very much in favour of it. I think it can lead only to greater understanding of each other’s perspectives. My one note of caution would be over respecting the fact that the Ministers in each Government about which we are talking are accountable to the particular parliament from which they come. Having said that, I have given evidence to select committees in the Scottish Parliament and have been happy to do so. That has to be on the understanding that my ultimate accountability is to the Parliament of the UK but I am happy to go and do my best to answer questions that Scottish parliamentarians have.
The Chairman: Baroness Kennedy, we have covered some of your question, but there are still the common frameworks.
Q13 Baroness Kennedy of The Shaws: Yes, I was going to ask you about UK-wide common frameworks and whether you wanted to give us an update on all that but I am anxious that we do not get too bogged down in that, despite the complaints from the devolved nations that they do not feel that they are heard sufficiently, as there are other questions and I am mindful of time. Still, how are we going with these common frameworks?
David Lidington MP: I think they are a real success story. They are unglamorous and have involved a lot of hard work, particularly by civil servants, not just at UK level but in all three devolved nations. We identified 160 areas of repatriated policy that overlapped with devolved competence. We ended up with only 21 that we thought might potentially require primary legislation to underpin the framework. We are now down to only four areas where there is disagreement over where competence to legislate sits and, of those four, two are quite minor technical disputes. There are only two issues, state aid and geographical indicators, where there is a significant divide over where competence ought to lie. In taking forward the discussions on frameworks, we and the devolved Administrations have managed to adopt a broadly pragmatic approach. Equally, in fairness, on the exit SI programme, for the most part the devolved Governments have said, “Let’s not have a row about competence; we can have that discussion later on down the line, but the immediate priority is to make sure, for the sake of our businesses, that we have a statute book and a regulatory framework that can operate and is coherent after exit day, so let’s do that and get things sorted”. I have clashes with the Scottish Ministers but, in fairness, on this their approach has been pragmatic and constructive.
Q14 Baroness Kennedy of The Shaws: Now we come to the hard stuff. Have you had discussions, and can you summarise them, about the devolved Administrations’ preparations for no deal? There is deep unhappiness about the prospect of that since, as we all know, the economic consequences will invariably be felt more deeply in other parts of the UK than in London. There is real anxiety about no deal and some of the cavalier attitudes towards it being expressed by members of your Government who are now competing for a leadership role. How has that been going?
David Lidington MP: As I said to the Committee earlier, for the Government “no deal” is not a policy but a contingency plan. We must have a contingency plan because of course it is not entirely in our gift; there are 27 other countries that have to be party to any potential extension. It is true that both the Scottish and Welsh Governments are strongly against no deal and make that very clear both publicly and privately. There will be differences between those two Governments in how they subsequently approach the Brexit issues deriving from how their different countries voted in the 2016 referendum. However, we now have officials at the official-level meetings and Ministers from Scotland and Wales at the ministerial-level meetings of EUXT(P) when we are discussing preparations, whether for deal or for no deal, that touch on devolved competence. Mike Russell and either Mark Drakeford or Jeremy Miles have been in the room when we have been talking about these things. They usually take the approach of making it clear where they have a difference of principle with some parliamentarians here over whether no deal ought to be countenanced at all, but they then also discuss practical arrangements for contingency plans, which I think is the responsible view today.
Baroness Kennedy of The Shaws: There was a JMC review of UK-devolved intergovernmental relations in future. When is that likely to be completed?
David Lidington MP: Clearly the change of PM will delay things a bit. I am hoping that we can make some more progress at the JMC(EN) that we are due to hold—next week, I think. We are near agreement on the principles that form one of the work streams there. As far as I am concerned, the sooner that we are able to move on to more substantive discussion, the better. Inevitably, though, the hiatus in the UK Government will slow things down.
Q15 Baroness Kennedy of The Shaws: I have one final matter. You spoke with great sensitivity, derived from your own experience, of how one has to be mindful of identity issues and the history of Ireland. There are similar sensitivities in Scotland.
Are you confident that those sensitivities are fully understood by all the contenders for the leadership of your party and the prime ministerial role? I say that because someone in the last 24 hours has sent me something that was written by, if one might say it, one of the front-runners in all this and it was deeply offensive to the Scottish people. So there is concern about whether sensitivity to devolved nations will be fully embraced and understood by some of those contenders.
David Lidington MP: I do not think that any of the candidates to be the next Prime Minister wishes to be the Prime Minister who presided over the break-up of the United Kingdom. The union is under greater strain than it has been at any point in my lifetime. There will need to be very sensitive political judgments. As Baroness Kennedy says, those have to be built upon both an understanding of the particular histories, identities and traditions of the different parts of the United Kingdom and on a willingness to be positive and assertive about the value of the union and the legitimacy of the Government of the union, as one of the two elected Governments of all three of the devolved nations.
When it comes to Scotland, I completely agree that it is important for politicians who represent English constituencies, who might be senior Ministers, to have an awareness of the histories, sensitivities and political traditions in Scotland, but I do not think that we should be shy about making a positive case for the union. I want to champion the value of multiple identities, because if the UK is to hold together then people should be able to feel proudly Scottish, proudly British and proudly European at the same time.
Baroness Kennedy of The Shaws: We used to feel all three.
David Lidington MP: In my own bit of Buckinghamshire I know plenty of people who take great pride in being Scottish, and they do not feel less Scottish for the fact that they might have been living and working in the south-east of England for many years.
The Chairman: On that uplifting note, we will move on to soft power now.
Q16 Lord Whitty: It does not take a particular leap of imagination to see that we are in a post-Brexit situation, whatever that might mean. This Committee has produced a report optimistically called How to Win Friends and Influence People. It is about how Britain’s relations with Europe should develop post Brexit. As we are near the end of the session, perhaps I could ask you quickly to pick up two or three points on that: first, the nature and resourcing of the diplomatic effort, including, in particular, Brussels and our direct relationship with the member states; secondly, the need for some sort of ongoing structure, which has hardly been envisaged so far in the negotiations, although there is a hint of it in the Joint Committee referred to in the withdrawal treaty; and, thirdly, if you have time, any advice on continuing interparliamentary engagement with the European Union.
David Lidington MP: I will start with the diplomatic side. There is a misapprehension in some quarters of the House of Commons that somehow leaving the European Union means that we can make great savings by closing down representation in Brussels and so on. Anybody who takes the trouble to look at the scale of United States, Norwegian or Swiss representation in Brussels will be very swiftly disabused of that misapprehension. Those countries, for which the European Union is a very important commercial, diplomatic and security partner, know that they have to invest. Therefore, in the future we will need an extremely strong, talented and committed team.
My guess is that a future UKMis, presumably, will have to be bigger than the current UKRep. As we will not be represented within the Commission, at Council of Ministers meetings or in the European Parliament, we will have to try to influence and prise open the doors from the outside. So we will have to have more people, not fewer, working to the European Parliament, to take one obvious example. In my view, we will also need to beef up our engagement bilaterally with European Union member states. I was responsible for those embassies and we had very good people there. There was always a sense that to some extent you would do your business in the EU context, but if in future we will need to influence EU decisions from the outside, we will have to do even more than we do now, or that we did in my day at the FCO, to influence member state capitals over the beefy positions that they will take within Council of Ministers or European Council meetings. We will also have to be really on top of the fact that, for many European countries, MEPs are key players in the political conversations and political systems. I have been thinking of Foreign Ministers in Greece and Spain in recent years who have been recruited directly from the European Parliament, with all the contacts and baggage that they bring with them.
On parliamentary involvement, there is a very strong case for more to be done. Really it is a question for parliamentarians. We have the IPU and the CPA. Are those sufficient? Do we need some sort of European parliamentary system or some way for Westminster to give priority to building those parliamentary relationships? I was very pleased that IPSA agreed to lift the limit of three visits. It is very important that, if we are leaving the European Union, parliamentarians of all parties encourage IPSA not to simply slap a limit down and put new restrictions on Members of Parliament visiting parliaments elsewhere in Europe. Those contacts will continue to be very important.
Then there are things which government can help to promote but which are essentially a question of civil society, universities and other institutions having their own network of connections around Europe. Those are things for government to facilitate but we cannot issue orders.
Q17 Lord Teverson: You have probably been the longest-serving Minister for Europe that we have ever had, so you know the institutions and the way that Europe works. I wonder whether you have any insight into how the EU has looked at this Brexit process. Although we look at the EU as maybe super-efficient—we had that picture of David Davis without any papers and Michel Barnier with his very ordered ones, and we also saw Michel Barnier’s charts—at the end of the day the European Union got an agreement that actually has not worked. So are they so good? Give us a bit of insight into that.
David Lidington MP: I will start with how I read the EU reaction after the referendum in 2016. It started with shock and deep regret, but at the same time seeing the result as legitimate. Early on, many countries hoped for a change of heart in the UK, but I think that has diminished as time has gone on; you saw that most starkly in President Macron’s comments at the last European Council meeting.
We perhaps underestimate the extent to which the EU worried and continues to worry about its own cohesion, with the divisions between the western and central European countries. If one looks at the clashes that Frans Timmermans has had with the Governments of some of the central European member states, you see illustrations of that. You see the tension between the French and Italian Governments—I am not saying anything that has not been expressed in public statements by the leaders of those two countries. The EU has been very determined to preserve its own coherence, ensure that no other member state feels encouraged to follow the UK example, and assert the integrity of the single market and the indivisibility of the four freedoms.
I would argue that the political declaration actually represents a significant concession because, in practice, the EU has opened the door to the divisibility of the four freedoms in the range of outcomes permitted under it, but that is perhaps something for another day. Its business groups have bought into that agenda. When I have talked to the MEDEF, the BDA and others, they have been very clear that while they do not want disruption to UK trade, the integrity of the European single market is a greater priority for them if they have to choose.
However, Lord Teverson is right: the EU has ended up with something that does not have agreement. There has sometimes been a misreading of politics and the political culture here and I have a criticism about how the EU has approached this, which is that it did not grasp sufficiently at the start the geostrategic stakes in all this. Now, if you listen to what Chancellor Merkel in particular has been saying, there is that understanding. Certainly, if you are talking about a greater role for the European pillar of the transatlantic alliance in security matters, for example in Africa, it does not make much sense unless the UK is involved in some way. The decision by the key member states to subcontract decisions to the Commission, and the Commission’s focus on preserving the integrity of the things for which it is responsible, meant that there was not sufficiently creative or flexible thinking on the EU’s side. As a result, we are perhaps now in a more difficult position than I had hoped we would be.
Lord Ricketts: I would like to follow up on that. I thank you for a bravura performance. On your last point, I wonder whether the next phase might be rather different from the first phase. I suppose the European side found it relatively easy to agree that the withdrawal agreement should cover citizens, money and Northern Ireland, for the reasons you have discussed. The next phase is going to be much broader and will take account of a whole range of differing interests, including a free trade agreement and many other things. Defence and security is one example, with President Macron now talking about a European intervention force designed to include Britain, outside the EU. I wonder whether it might feel different, assuming we get to a phase 2 negotiation.
You would expect me to agree absolutely with what you said about the need to reinforce our diplomatic and soft power engagement across the board, upstream, in all the capitals, as well as working differently in Brussels. That is a classic diplomatic effort and we have the skills to do it, but the Foreign Office will need the resourcing for it—sorry for the plug.
David Lidington MP: The Government of the day will have to take a collective decision about what resource they are prepared to allocate to what will need to be, as a consequence of Brexit, a greater priority in the future, to promote our interests.
Lord Ricketts: And will it feel different in the second phase?
David Lidington MP: Yes, although a lot depends on what happens in domestic politics not only here but in some of these other countries. The tide of populism has not receded yet. The traditional centre-right and centre-left parties in pretty well every European country remain under acute pressure. Even in the event of a no-deal exit, you have to pick up and start again.
My concern is that, in those circumstances, the EU would start by saying, “Fine, we can talk about a Canada-style free trade agreement. Of course, our starting point is that we need you to agree on citizens’ rights, the financial settlement and the Irish border, and then we can move on to all these other things”. Also, if you are negotiating on an Article 218 treaty base, rather than on an Article 50 one, there is a unanimity requirement that is not there for Article 50. That is going to be there anyway, whether it is a deal or a no-deal exit. Phase 2 will be based on Article 218, so there will be the need for unanimity on the mandate and any changes to it.
If heads of government and key ministerial minds on both sides of the Channel can be focused on the broader geostrategic interests of all the European countries involved, it is perfectly possible to see a way through. Of course, it will be a very difficult, complex, challenging negotiation, but if you look at the way the world is changing—Merkel is particularly strong on this—we are entering an age of continent-sized powers, with the United States and India, and regional blocs such as ASEAN, becoming more significant. Not even the biggest European country will be able to chart its own course completely in those quarters, and we will need to find ways of operating. Frankly, if the EU were to dissolve tomorrow, all the European countries, including us, would be looking around and thinking about what sort of structure we want in its place for European co-operation, friendship and trade facilitation. I am very interested in Macron’s idea of circles, for example, which I do not think is too far removed from what a generation of British Ministers talked about with flexible geometry.
Lord Ricketts: I quite agree.
The Chairman: Thank you, Minister. We should now conclude the public part of this meeting. A transcript will be sent to you for factual corrections. The meeting is now closed.
