 Good morning, and welcome to the 23rd meeting of the Culture, Tourism, Europe and External Relations Committee in 2017. I'd like to remind members and the public to turn off mobile phones and any members using electronic devices to access committee papers should please ensure that they are switched to silence. Our first item of business today is an evidence session on the article 50 withdrawal negotiations with Lord Kerr of Kinlachard. I'd like to welcome Lord Kerr to the committee. Lord Kerr has indicated that he will not be making an opening statement, so we shall just proceed immediately to questions and I shall open. Lord Kerr, you are often referred to as the man who wrote article 50 as your Secretary General of the European Convention. I wonder if you could explain what the thinking was that led to the drafting of article 50. Now that we are seeing it enacted for the first time, what do you consider that it was drafted in the correct way? Does it leave enough time to negotiate the withdrawal agreement within two years? Is there anything that you would do differently now? Mine was the pen that did the first draft, and in that sense I wrote it, but it was written collectively by a convention of 212 people who approved it unanimously, so I can't claim all the credit or the discredit. The rationale for it, and it wasn't particularly controversial in the convention. This is a 2002-2003 assembly in Brussels, of which I was Secretary General, whose product was rejected in referenda in France and the Netherlands, but bits of it found their way into the Lisbon Treaty and so into the operational treaty at the base of the European Union now. Article 50 was one of these bits. In the convention it wasn't particularly controversial. The Dihard Federalists said that it was undesirable. Most people thought it was unnecessary. Very few could contemplate any member state being mad enough to want to leave. It was popular with the president of the convention, Giscard d'Esta, and those who took the view, which we wrote very clearly into the treaty, that it was a voluntary partnership of sovereign states who decided that in limited areas, which we defined more clearly, the central institutions should be given powers, which they could not extend other by unanimity, and we defined that more clearly. Voluntary, the essential voluntary nature of the European Union seemed to require that there should be a procedure for seceding from it if a member state changed its mind and decided it didn't want to be a member. Of course, this is actually unnecessary because any member state could at any time have left. If you stopped paying the bills and turning up at the meetings, people would in due course notice that you seem to have left. That could be done. You can't do that now, legally, now that we have an article in the treaty. But the idea that there should be a symmetry between an accession clause and an accession clause was all part of the emphasis on voluntary. The time limit came in because people were concerned at the Eurosceptic argument, and one of the purposes of Article 50 was to defeat the Eurosceptic argument that the member states were tied to their ores, galley slaves rowing to an unknown destination, no way of getting out. The sceptics argued that the, without a time limit, you would be forever ensnared in the web of negotiations, so you might say, I want to go, but it's a tell California, you can't check out. And it was to please sceptics that we wrote in the two-year limit. I found it rather paradoxical, but it is now being said that the two-year limit puts the departing state under extreme time pressure and puts all the cards in the hands of the Union. We didn't think that at the time, and I still don't think that. What I find is odd, in our case, is that we chose to trigger the procedure without having a clear idea of where we were going to go. We chose to trigger the procedure without having an agreed definition, even inside the government, of the end state, our future relationship with the Union we had left. And as soon as we had fired the gun, we went off and had an election, and so spent three months not negotiating, while our friends across the channel, within one month, had prepared their position with the European Council agreement on the 29th of April. It is true that on the 29th of March 2019, unless something else happens, we will leave, whether or not there is an agreement. So in that sense, the time limit acts against us. But whose fault is that? If we were well prepared, if we had done some preliminary work and been to see some of our friends and partners before firing the gun, if we had an agreed government position, or best of all, if we had explained that agreed government position to the country and had an agreed national position, then two years would not be too long to sort, I mean. Thank you for that. Do you think that any more progress has been made after the Florence speech? What is your view on the government position now, post the Florence speech? I think the tone of the Florence speech was a certain improvement on last year's party conference speech, which was quite a surprise and a shock to most people in continental Europe, and the Lancaster house speech in January. I think this is the of her European speeches, this is the one with the friendliest tone. I think that the move on money, though insufficient, at least gets started. The problem of the money dossier up to now is that, while the other side have aggregated everybody's bids and have ended up with what is clearly an overbid, we have put no counterbid on the table at all and put in no papers at all. Therefore, the process of finding a middle ground compromise hasn't started. I think it's good that we have hinted at something in the region of 20 billion. It's not going to settle at that, but at least that is some sort of hint. I hope that next week that will be underpinned by some sort of paper, some sort of basis to start a negotiation. I don't know. I should say that I speak only personally. I have no idea what is going on inside government. On the tone and on the money, definitely an advance. The talk of a transition I'd like to come back to, if I may, that is, I think, a very difficult area. What has been said at the party conference this week about transition, I think, leaves us still in considerable difficulty. The main defect as seen by our foreign friends in the foreign speech is she still hasn't said what she envisages as the long-term, permanent, steady-state relationship between Britain and the European Union. She's told us what it isn't. It isn't the Norwegian relationship. It isn't an EEF-type relationship because that, she said, would impose too much of a constraint on our sovereignty. It isn't the Canadian relationship. She's ruled out two forms of relationship. She hasn't addressed what it is that we actually do want. They really don't know. They are left worrying that she may still be where she was at party conference 2016 and in Lancaster House, January 2017, wishing to cherry pick bits of the single market, possibly bits of customs union, and set up some sort of hybrid. That is not a popular concept among the 27. So there's still uncertainty. We haven't come forward with the framework for the future relationship, nor have they, but they think that we are a demander and it's up to us to propose what it is that we want. Of course, article 50.2 is understand and allowed for discussion of the future framework, but the EU is stricking very clearly to the phased approach that the exit deal has to be agreed before the future framework can be discussed. What's your view of that phased approach? I think it's a mistake. The problem of the relationship between the divorce talks and planning for the future relationship was one that we discussed in the convention 15 years ago. You clearly cannot, in a two-year period, work out the detail of a deep, comprehensive future relationship, and I hope it will be deep and comprehensive. Canada took seven years, and I hope that our agreement will be much more complex and detailed than the comprehensive than the Canadian agreement. So it's going to take considerable time. So we invented this concept of the framework that the divorce lawyers would be taking account of who's going to be looking after the kids in the future, what is the relationship between these two parties when they are separate. We didn't define what that framework was. It's cartel in French. We negotiated it in French. We didn't say what it was. I must say my own view was, and still is, that it is an architecture for cooperation and that a mistake that we have made is not to come forward with institutional proposals for the annex to the council in which the British representatives will explain to the European Union before they decide in the main council building what is the policy of the union. Not just in trade areas and economic areas, but in diplomatic areas, in foreign policy, in anti-terrorism, in environmental, anti-environmental pollution, global warming, and a wide range of areas. I'm sure we will want to cooperate with them. We will probably be their closest partner. I hope we'll want to go on consulting them before we vote in the Security Council, as we do now. I hope we'll want to go on sharing intelligence with them on terrorism or whatever. So it seems to me there is a positive proposal, which we haven't made. It needs an architecture. You need to explain how we see that working and put a proposal to them. Well, they could have done that, too, and they haven't, but, as I said, they think we're demand. We've created the problem. We need to come up with solutions, and they don't know how closely we want to work with them anymore. So we need to say. I think the sequencing decision that they took was a mistake. I think it was a mistake to say sufficient progress on divorce before you even get talking about the framework. I think it's legally defective, because as the article is drafted, as you know, the divorce lawyers have to take account of the framework. Nobody has drafted a framework. They will have to, otherwise, the divorce agreement, when reached, will be legally defective, because there will be no framework that they've taken account of. I think that was a mistake on their part. I think it was also a mistake of Misha Bani to secure the impressive unanimity of the 27 now by accepting ad interim everybody's bid for something that the British should be required to pay. So I think there were two negotiating errors on their part. I think on our part, there has been a small negotiating error in that we haven't been willing to put any money on the table up to now or explain how they might as well be calculated, and in my view, a very big negotiating error in that we could have broken this problem about sequencing if we had come forward with our framework, if we had our vision and its architectural underpinning. We haven't done that at all, and we still, after the Manchester Party conference, it seems to me we are still not quite clear what it is that the government want. So I think both sides have made mistakes, mistakes that are retrievable, but I am, of course, I speak as an old ex-diplomaten, who saw the news don't talk, and I would all have been much better in my time. Very interesting. I now pass to Lewis MacDonald. Can we follow that one through, because it's very interesting to hear you formulate the problem in the way you have that both the European Council and the UK government have made fundamental strategic errors in their approach to those negotiations, and you say that they are both retrievable. I'd be very interested in your view on the European side of that equation, whether it is possible for Barnier or his team to achieve a different approach, given they've made that decision about sequencing and given that they've made such a global bid for compensation, so to speak, in terms of the financial settlement. I wonder what the European Council or the member states can now do to retrieve the position and create a realistic basis for concluding this stage of the negotiation. Will they think the balls in our court a lot will depend on what David Davies says next week, particularly on the money front. Personally, I think the chances of an agreement on the 21st that sufficient progress has been made are very low indeed, verging on zero. There has been no progress at all on the Irish dossier, as far as I can see, on citizens' rights. There has been real progress and the gap is quite narrow, but on the money the bargaining hasn't started, and it may start next week. So far, this is not really impinging on political debate among the 27th. We need to remember that we are not the big show in town. Merkel and Schultz debated for 90 minutes. Britain wasn't mentioned. Brexit wasn't mentioned. Macron went to this or bon and spoke for 90 minutes. Much of it about the future of Europe, Britain got mentioned in one sentence when he was describing his concept of a future Europe of inner and outer circles. He said, rather than touchingly, that maybe the British might find a place in the outer circle one day if they change their minds. The things that they want to talk about in the European Council are Trump, Putin, possibly now Catalonia, Poland, which is a very big issue with the possibility of article 7, which is action against a member state that is not observing the values of the European Union. The banking system issues the possibility of the Germans accepting some of Macron's ideas for further integration in the Eurozone and Eurozone governance. These are the big issues. The hired gun Barney has been sent away to deal with the difficult British. They are not expecting, most of I say they. I would guess most heads of government are not expecting that the October European Council is going to do any business on Brexit at all. Because their ambassadors have reported to them that the British still can't make up their minds what they're asking for. And their permanent representative in Brussels will have reported that there doesn't need to be much going on in the Barney and Davis talks. So they are not preparing for a great big decision. They are expecting to hear a progress report from Barney and agree to hear another progress report in December. That is what I think is likely to happen unless something dramatic happens next week. Now, what should we do to break out from that? I do think that the requirement to explain what we see as a relationship in 10 years time is very important. She hasn't set out her blueprint. She didn't say anything about it yesterday in Manchester. Johnson has talked about his blueprint, though principally about transition. There are various other models that we could think of following on the table. I don't think many of them are on offer. I think for the EU something like Canada or something like Norway are the easy ones because they're off the shelf. I think that the Ukraine is probably the one that comes closest to what she may be hinting at. Partly because the Ukrainians don't have free movement of persons because nobody wants 40 million Ukrainians pouring in and the Ukrainians don't pay, but the Ukrainians don't pay because their per capita GDP is lower than that of any other member state. It seems to me that the Ukraine is unlikely to be easily applicable to the United Kingdom, but it is a partial membership of the single market. It does give them things like the banking passport, things that are important to the city, so it's a model that perhaps we ought to think about. There is the Swiss model, which some in the city of London think might be the answer. The Swiss model is 131 separate sectoral agreements. The European Union decided many years ago that it didn't work and they would never do it again with anybody else. I think that is probably still the position, but I don't know if that has been tested. I think there is no off-the-shelf model that's available that if we reject the two obvious ones. Turkey is another one we could look at, but that's a partial membership of the customs union and again for a very different economy and again was designed for a country like the Ukraine that at the time was thought to be converging with the European Union, whereas it's more difficult to devise something for a country that's going to diverge from the European Union. I do think it's a kind of vacuum until we can say what it is we want and I am sorry that we are spending so much time now talking about the transition and I'm sorry to see cheering the idea of a two-year transition. A transition as discussed so far by the British isn't a transition at all. We don't know where we're going, we don't know where the other pillar of the bridge is, we don't know where we're landing, so we can't build a bridge to it. It is not a transition nor is it an implementation period because there will be nothing to implement in the interim. It is a deferral period, a stay of execution. The cliff edge is still there, it just comes two years later. So if it is a transition, Allah Philip Hammond, if he has won his battle with Johnson and it is a status quo transition that is reasonably easy to negotiate with the European Union and I can see that being done perfectly well within the two-year period. What's not to like from their point of view? Here are the Brits saying okay they give up their judge, they give up their seat in the council, they give up their seats in the parliament, they give up their commissioner but they agree to follow all European Union laws and accept the court of justice rulings. What? Fine, we don't have these difficult Brits with their ghastly ambassadors in co-repair, finicky in the detail but we just tell them what they do and they do it. Fine, why not? And the possibility of that is laid down in the 29 April European Council guidelines text where they spell out very clearly that an extension of the AKI is possible. Should a time-limited prolegation of Union AKI be considered, I'm quoting, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply. If we accept that, then a two-year transition is absolutely not a problem and one could envisage without a framework, without knowing where we're going, that we could still agree that. Don't call it transition though, it's merely deferring the cliff-head. It's the prisoner who's not going to be executed next week, just two years late. I'm not sure that that's what's wanted and I'm not sure that Philip Hammond has won his battle inside the Conservative party. Johnson is saying he could live with two years, not a day more but the ECJ rulings must not apply during that period and of course we wouldn't accept any new laws coming out of the of the Brussels sausage machine once we'd left it. But that flies in the face of a position which the EU will stick to. And then this week in Manchester we've had the immigration minister saying that although the immigration bill is delayed, don't worry, we will put an end to free movement of persons on 29 March 2019, but if you're in a status quo transition you cannot put an end to free movement of persons. I have to continue. Thank you, Tavish Scott. Thank you. I was really going to ask how likely you thought a hard breaks it was in 2019. Well I think it's quite likely. I used to try to produce spurious percentages which some people took seriously. I think it's almost 50-50. I think that the government has raised expectations in this country unrealistically. I think when David Davis says and he goes on saying we will enjoy the exact same benefits as we did when we were members of the Single Market and the Customs Union, I think Barney is quite right to say that's impossible. Mrs Merkel is quite right to say that it's not feasible. At some stage the penny is going to drop. Some stage between now and March 2019 it is going to become clear that Johnson roaring like a lion isn't actually delivering anything in Brussels and that what we were told in the referendum campaign and since about how we would be able to have RK can eat it isn't proving to be the case and I think the longer that moment is of the penny dropping is deferred, the bigger the disappointment and feeling of being let down in this country. Of course it will be blamed on the evil foreigners who have not given us what we want and nobody in Britain except this committee and me are familiar with the European Union's agreed position of 27. I think also that on the money as I said the EU made a mistake or rather Michel Barney I think made a mistake. He's a good negotiator in aggregating everybody's bid because there are going to be diminished expectations on that side too and for some like the polls that will be painful. I mean the answer is not going to be R20 but nor is it going to be their hundred million billion. It comes somewhere in between so there is going to be disappointments of among the member states as well. I think that the I think that a hard Brexit deferred by two years is now quite a high possibility. I think that's almost the worst possible outcome though then would be some implementation during the two years as it gives plenty of time for business and enterprise to implement its plans to relocate to Ireland or to Frankfurt or wherever. So I am personally more interested in the alternative proposition which is that as the penny drops in this country and as people realise that having the cake and eating it is not on people will begin to wonder whether it really does make sense to me take the transition period all the responsibilities of membership but none of the rights to involvement in decision taking and policy making. Is that a good deal? It seems to me that although I as you may have guessed I was a fairly keen remainder it seems to me that public opinion in this country might actually move as it even though most of the economic effects of Brexit will not be felt till after Brexit it will be clear that something has gone wrong. This isn't quite what Mr Johnson and Mr Gove and Mr Fox told us was going to be what would happen. We Lord Kerr that you think the 50-50 calculation would be retrievable to use your own word from earlier on is if the UK government sets out its position as to what kind of model it wants for a future relationship between a UK that's left and the EU and does so in pretty short order. I think it should do but of course whether it does any good depends what it says. If it goes back to the party conference speech and her consistent line ever since that the ECJ must have no sway in the United Kingdom after March 2019 then it's not going to do much good. That has led to all sorts of very strange contortions. The only reason we have to leave Euratum is because the ECJ has a supervisory rule of Euratum. In my view very odd if she again says that we are going to pick bits of the single market that we are going to stay in or if she adopts what seems to be Philip Hammond's line that regulatory equivalence is going to be ensured in future by some sort of bilateral mechanism between the European Union and the city of London that won't fly either and it seemed to me if we make an unrealistic proposal then it doesn't help and the risk of the hard Brexit cliff edge remains just to say but I do understand the problem for the government because you have to take on the problem of diminished expectations if you are going to make a proposal for a framework that might actually fly with the 27. In which time Liam Fox has to resign. Final question if I may convene on money we've gathered as a committee that the real issue around money is members states either having to pay more into the overall new budget or conversely some who will lose even more if that bit were solved by David Davis coming up with an offer that we all started to understand next week and therefore the money issue but at least there was a direction of travel on money do you think that would move the matters on quite considerably? Yes I mean I imagine that Mr Davis will spell out and I hope on paper with numbers what she meant in Florence by saying that nobody was going to be out of pocket for two years I don't think that cracks it I think it starts a process but the RLA is a big bill it's much bigger than 20 billion and it runs some of it projects in member states building of roads whatever railway lines some of that is stretching well beyond the two-year period and we have signed up so I pensions people live quite a long time so I just hope they I don't know what the final number is but you said would that start a bit of momentum a bit of movement yes I think it will and I do myself think that the money dossier is perfectly soluble I what worries me is if if the solving of the money dossier and paying quite a lot coincides with the realisation that we can't get our have our cake and eat it we we can't cherry pick the ackee at there could be in this inside the conservative party that could be fairly short fused territory and anything could happen Marie Gougeon thank you quite a lot of the questions that I've had you've actually answered already it was just a really around the transitional arrangements which you've discussed and you said a little bit about this the political decision making within the EU over that transitional period so just to clarify the UK wouldn't have any role in the any political decision making with the EU during that transition time about the transition as on everybody's definition follows departure it's not a transition to departure so we would leave the European Union in March 2019 and we would elect no MEPs to the European Parliament in May 2019 and from the first of April 2019 we would have no representatives in the council and our commissioner Mr I've forgotten his name King Julian King would would come home that that all follows from departure if you're not a member state you cannot have a seat at the table I think that that is not widely understood in the the discussion about tradition my worry is it may not be understood really until it's happened in which case it's too late to to do anything about it because Article 50 beautifully drafted points out in its last paragraph that once you've left you've left and if you want to come back in again you can only come back in by the front door mark tax session which is a place where you can't argue that you'd like to have a budget regate please or there are the various privileges that you have you did secure in the past when you were a member should be recreated for you up to March 2019 we are full members of the European Union and I think we should behave as full members and I think we've made a mistake in self isolating I think we should have gone to the big anniversary summit in March in Rome I think Mr Johnson is wrong to stay away from the European Council what do you think from the foreign affairs council when he thinks it's going to be critical of the Americans I think these are mistakes I think we should be in there playing on every dossier instead of which we are concentrating on the the brexit dossier and standing away from our partners which is as a minimum bad diplomacy and I think up to March 2019 we should behave as full members if we change our mind before March 2019 we can take back our article 50 letter and continue as full members and some on the continent hope that we will do so and in that situation there will be no question of losing our budget rebate or anything like that we are full members we remain full members and the rebate can only be changed by unanimity among members but once we're outside once the midnight on what is on the 29th last 2019 then all our privileges as a member disappear all our rights as a member disappear and if we ever want to come back in again it would be an accession negotiation thank you another point I wanted to touch on you spoke earlier about the movement in certain areas in terms of some of the negotiations and in terms of EU citizens rights that still one of the main stumbling blocks seems to be well will that be answerable to the European Court of Justice and what the role will be there how likely do you think that there is that there will be some movement on that and what other alternatives would you see as being really feasible and that could satisfy both parties in terms of the negotiations I'm not a lawyer so this is not an area I'm particularly good at I thought that the the offer we made on citizens rights was much the most the much the best of the papers that we have put forward I thought it was a perfectly reasonable offer and it contained real content where some of them don't I I think the the 27 are overbidding when they say that the rights of non-UK EU citizens resident in Britain after we've left must forever be protected by the European Court of Justice that seems to me to be odd that the ECJ should have sway in a non-member state in disputes between people who live in that country and their government our government so I think that's an overbid I think some kind of hybrid is a more likely solution some hybrid judicial structure or possibly the solution being talked about now of embedding the rights of EU citizens in this country in the withdrawal treaty and thus writing it into British law I don't know whether that but I think these these gaps are bridgeable I think that I also think there are mistakes on the other side which we can put right I think it is odd that they are saying that the rights of the British citizen resident in Spain will remain provided he remains in Spain but won't apply if he goes to live in France that seems to me to be odd I think that either he has rights derived from the treaty in which case they apply wherever he's resident or the or he doesn't to say he has rights derived from the treaty but only apply in the country in which he happened to be resident at the moment the British left seems to be a bit odd but I think that's that one's doable I worry much more about the Irish dossier and the lack of progress on that one which seems to me to be a complete lack of progress I don't see anything has happened at all there thank you a quick supplementary from Lewis McDonnell thank you very much Lord Kerry you said very clearly in response to Marie Gougeon's first question that will be a straightforward matter to withdraw the article 50 letter article 50 doesn't contain any reference to how it might be withdrawn could you explain briefly what the basis is for your certainty on that matter the legal advice I got while drafting the article there would have been a six sub clause if I hadn't been assured that there was no need to do it if if it doesn't say that you can't withdraw your letter then you can withdraw your letter that was a legal advice I have and that and I'm sure it's right and it has been confirmed by Tusk, Juncker, Merkel, Macron it is the case that if the United Kingdom turned up at a European Council and said listen this is all very embarrassing we've wasted your time but actually we've changed our mind people might under their breath say oh my god these British but actually they would be rather welcoming they don't particularly want us to go they they don't think they can interfere in our internal affairs and therefore they are not going to campaign for us not to go but if we were to decide that we were that would be welcome there is legal dispute you're quite right there are some who say that it's an irrevocable act sending in an article 50 letter they are I assure you wrong but one of them could take a case in the ECJ could say hey hang on they can't do that can they I think we know the outcome supposing there has been a European Council the British have said we'd like to stay the European Council has as it would unanimously said thank god for that the case is then brought a couple of months later and two years later it actually gets to the court of justice but whether the British were within their legal rights of doing that the court of justice would take five minutes to say go away if there was a political agreement among the 28 leaders of Europe that would stick very much this is the place as we're going into the area of politics here but what needs to happen for the article 50 letter to be withdrawn ah well this is for you lot to say not for me I'm a I'm an independent of no views political virgin I spent my life innocent I I think it requires an election I would speculate that whereas parliament will spend the next six months debating the withdrawal bill and amending the withdrawal bill and it will be amended but in the end it will carry it will be amended I believe in a number of respects including the the area most important to to this parliament I think I think there will have to be changes made and they will be made some of the amendments that are down in the order paper in the House of Commons have 12 Conservative names on them that's enough some of the amendments that people like me made to the article 50 bill on meaning for vote ensuring that the the government would have to come back with any deal to the House of Commons before we actually left these amendments were struck out in the House of Commons last time they would not be struck out by the House of Commons that was elected in this year's election so there are there will be changes to the withdrawal bill but that's what we'll be doing and the country will not pay much attention to that the daily mayor will say we're trying to obstruct Brexit we will be trying to improve a bill that is in my view defective that's this autumn and for the Lord's next spring drama but next autumn's drama autumn 2018 is the deal or no deal and I cannot now see any negotiable deal for which there is a majority in the House of Commons it seems to me that they there are sufficient hardline Brexiteers to make it very difficult for the Prime Minister to compromise sufficiently to get a deal in Brussels and if she does these people may vote down her deal there is certainly a majority against no deal everybody and now well not everybody but a large majority in both houses now agree that that no deal is better than a bad deal was a was wrong that actually the chaos of no deal would be very bad so I can see a situation in November December when the outlines of the deal or no deal are becoming clear November December next year and there will be a requirement for a parliamentary vote even if it's no deal because that amendment will have carried to the withdrawal bill this autumn at that stage I think we could be quite close to an election thank you Richard Hamilton Lord Kerr I've got a number of questions for you and Barney was very positive about the Prime Minister's Florence speech and he also stated that the talks were useful and after the fourth round of talks on island for example he said that they'd had a constructive discussion and made progress what makes you disagree with Michelle Barney I never disagree with Michelle Barney he was in my convention and he's a very good diplomat better diplomat than me and probably being more polite than than I am in the remarks you've quoted on island I I think he was talking about the discussions of ways of making sure that the good friday agreement is is not damaged by brexit and I believe there has been progress made on that but the big issue of island is the is the frontier and there are two kinds of frontier the frontier on persons it is for us to say how hard it is and if we change our immigration policy and make it more related to employment than to checks at frontier if we decide we don't mind if an EU citizen from say Riga flies into Dublin comes into the common travel area at Dublin airport takes the train up to Belfast and ends up in Edinburgh with out passing through any frontier that's fine the European Union is not going to say you can't do that and the Irish Republic is not going to say you can't do that so the question of the frontier for people is and its hardness is entirely up to us the converse applies to goods and services the customs frontier we can say as much as we like that we don't mind what comes in from island we don't want to check it the frontier across island will be the external frontier of the european union and it is not down to the irish to say what is there it is down to the customs committees in Brussels to design what checks are necessary i think that probably they will be generous about small scale stuff about cross border of smuggling of cows over the moors or cigarettes in the back of a white van i think all all that went on extensively in the days when both countries were not in the european union and bits of that would probably start again and so on what they will be very firm about them is the idea that third countries will get their goods or services into the european union by flat pack delivery to belfast or somewhere else in the united kingdom and then entry into the european union final after final assembly with no rules of origin check so the lorries will have to be stopped they don't have necessary to be stopped at the frontier they might be stopped a couple of miles down the road and they could have cameras on the front and on but there is no technological fix to the need for the external frontier to be a frontier where the declarations that have been made are checked against the goods in the truck if you go to niagra and look at the the canadian us frontier or you go to the swedish finnish frontier swedish uh norwegian frontier you find yes the lorries are stopped not all the lorries but sufficient of the lorries to satisfy that committee in brussel and for the polish member or the hungarian member or the french member of that committee there is no particular incentive to be nice to the irish this isn't what mr veragca wants but what he wants is is he's only one voice in 27 who will decide this we can't decide this when the prime minister says as mrs villas said during the referendum campaign as mr brockenshaw goes on saying there will not be a hard frontier nothing will change at the frontier that could only be true if we remain in the customs union if we leave the customs union it can't be true time for a quick very very quick okay um i just in as well okay um i just wanted to clarify a comment that you made earlier you mentioned about barnie's negotiating error um by pressing the views of the eu 27 i just wondered when we went out to brussels and we met didiasus um he seemed to be encouraging a unified position from the eu 27 and i was just wondering first of all can you clarify that position about the oppressive oppression and secondly do you not think that if they did have a unified position it would be a give much more room for maneuver for negotiation and barnie is the agent of the of the 27 he's bound by his mandate he can't move unless his mandate changes he could ask for his mandate to change my view is he's unlikely to ask for his mandate change at this european council because they have told him they don't want him to do that until he can report sufficient progress and i doubt if he's going to be able to report sufficient progress i think what i was trying to say was i think his mistake was to settle for an easy life in the short term agreeing to uh on the money dossier to put forward all the suggestions that were made to him which took the the bill up to round about 100 i'm told i think it might have been easier with some of the of the dodger elements in the bill to have a debate then and disappoint some member state there and then because in the end the disappointment is going to come that's a mini version of what i think we're doing where we have told the country this country nothing is going to change don't worry we'll get you a deal with the european union which means we get the best of all all worlds and we are going to discover that that is not the case and that is going to be difficult for government at that point and i think it would have been better and would still be better to start making clear that there are things that we can't deliver i think that that was my criticism of the EU but the impressive solidarity of the EU and the way that british attempts to get round behind and negotiate bilaterally particularly with berlin have completely failed that is is a lesson for us i mean we are we have puzzled people we've insulted people a bit and they are a bit bored of us and a bit baffled by us and they think they have other things to do. Stuart McMillan. Thank you convener. Lord Kerr a few moments ago you spoke about the EU withdrawal bill and potential amendments and you indicated that amendments with with their effect upon that the we as a parliament would certainly be interested in. Can you expand further on that on your other comments and why it's so important for this parliament? Yes well i think there are five areas of the bill that are going to need amendment and the devolution aspect is a subset of of Henry VIII pass and the parliament will not pass in my judgment the bill in his present form which allows the government by statutory instrument to change a great deal without full parliamentary scrutiny subset of that is the devolution aspect from clause 11 i am not a lawyer so i'm i i i speak with some nervousness about this but it seems to me that the concept of retained laws the EU powers that are taken back retention at the centre of all EU powers in areas like say environmental protection which is a devolved subject at present your ability to legislate on environmental protection is constrained by the fact that you are required to be in compliance with EU law just as the UK government is required to be in compliance with EU law that limitation is removed the effect is that the extent to which you can legislate on environmental protection once the withdrawal bill is law will be affected by how many of the powers in relation to the environment that are taken back by the centre are subsequently amended by the centre declared to be defective in the language of the bill these deficiencies require them to change them and by statutory instrument and how many of them are given back to you and at what stage are they given back to you what stage in what is a two year process according to the bill now that seems to me as an amateur to fly in the face of the devolution settlement and the division by topics reserved subjects everything else devolved to you if they are now saying if the UK government is saying that on areas like fish and agriculture or whatever it needs to retain powers for a period and might need to change powers for a period then I think the idea that devolved blocks of subjects like agriculture or environmental protection that concept has for the first time been broken in my view that is why I think that bill that bit of the bill will get changed in the Westminster parliament because it does seem to me to be fundamentally important Ross clear point community but I don't care you mentioned the potential disappointment of some of the U27 because of the way their positions being constructed which takes us to the issue of ratification a lot of the discussion around any potential drama at ratification point has focused on the role of the European Parliament do you think it's more likely that it would be within the 27 mean you mentioned the Ukrainian deal previously that was almost derailed by referendum in the Netherlands yes I think that if there is a deal between the European council and the British I mean the idea between you and the British set at European council level I believe the parliament would be likely to approve it I think it might grumble a bit it might have a bit of a tantrum but I think it would approve it because everybody is aware that the cliff edge if there's no legal agreement at all is dreadful yes I agree with you that the long-term relationship would be I hope would be subject to national ratification the divorce agreement under article 50 is not subject to national ratification it's a qualified majority in the council and but you can't do a long-term arrangement on the legal base of article 50 you need to go to treaty basis where unanimity is required and national ratification is required if you are going with even as wide as the canadian agreement which ran into trouble in the well only in parliament or I hope we would be a lot wider than that it would be a much more comprehensive agreement so you're certainly going to get national ratification and the well only a problem certainly could arise and I think the areas where it's most likely to arise are areas where we have particularly insulted people and the art example is Poland Poland is unhappy about the way we propose to treat Polish citizens living in this country and there are a lot of them living in this country Poland is unhappy that the country that it thought was its closest friend and patron in the European Union that was at the time when I was patented by the strongest advocate of Polish admission to the European Union has turned out to resent paying structural fund money to Poland and turned out to resent having Polish people in in the of this is how they the polls see it so I would expect bitterness in Poland to be the to some extent elsewhere in eastern Europe perhaps particularly in Poland to be there to create the greatest risk at ratification time but a lot may have changed by then if they the permanent deal requires many years of negotiation so ratification probably doesn't come around until 2024 or 5. Thank you very much for that and thank you very much lord care for giving your evidence to us today we will now move into private session