Chair: Good afternoon, Mrs Braverman. We have just had Dominic Raab here. I would like to ask you, first of all, about your resignation letter, in which you referred to the backstop as “a betrayal” and said that the concessions made in the negotiations “do not respect the will of the people”. You don’t say things like that without feeling very strongly about it—otherwise you would not have resigned—but could you enlarge on that as a starter, please?
Suella Braverman: Thank you, Chair and members of the Committee, for the invitation to address you this afternoon.
You are right: they were very strong words that I used in my resignation letter. I felt very strongly about the situation, and I chose those words deliberately. Essentially, they reflect the culmination of my experience in the Department, which could be summed up as a growing erosion of my faith in the policy being honestly delivered.
The straw that broke the camel’s back for me was the final iteration of the Northern Irish backstop. I considered it a betrayal, because the clear and unequivocal promise by the Government in manifestos, on the Floor of the House, in speeches and in policy documents was that we would be able to leave the EU’s customs union, leave the EU single market and bring an end to free movement of people. The terms of this backstop did not honour that, in that we would be locked indefinitely into a customs union and, as a corollary, single market rules. That flies in the face of what has been promised, and for me that is ultimately a betrayal—to be offered a treaty taking the British people and our nation down a route that was not their expectation or what was offered.
Chair: What lessons do you learn from this, in terms of parliamentary democracy and public confidence in our political system?
Suella Braverman: I have learned a lot of lessons in that regard. I think I have had an eye-opening experience. There is obviously a disparity between expectations and the reality, but I do not think I went into the Department with unrealistic expectations or an extremely idealistic outlook; I think I have enough experience to know that there will always be battles and fights to win, obstacles in the way, and a need for compromise and pragmatism. However, I have learned that compromise is inevitable and intrinsic to this process of extricating ourselves from a complex union—political and legal—with the EU, but there comes a point when compromise becomes total surrender, and politicians at the head of that process have to bear the responsibility for it, ultimately.
Chair: Would you go so far as to say that you had experienced things which you might regard as lies?
Suella Braverman: That is a very strong word as well. There is a disconnect between what has been said in terms of grandiose policy statements—for example, I have lost count of the number of times that I have heard or read that the UK is leaving the single market on 29 March, leaving the customs union on 29 March, free movement will come to an end, and we will be taking back control of our laws, borders and trade, but that has not been borne out when you look at the detail and the legal text. On 29 March, under this deal, were we to go ahead with it, the free movement directive would continue to apply, because of the implementation period. We would still effectively be a member of the customs union and the single market. The jurisdiction of the ECJ would continue. Worse still, that would even continue beyond the end of the implementation period, the end date of which is now unclear in this agreement. So those sound like laudable aims and policies that I can get behind, but I had a growing anxiety that I could not honestly state those positions without misleading. “Lies” suggests deliberate action, and I don’t want to go that far—to say that there have been lies—but there has definitely been a difference in reality and perception.
Chair: If I may, I will move on to the question of the backstop and the customs union issue. Given the recent statements from the EU27 that the EU withdrawal agreement cannot be reopened, do you believe that a revised agreement, without a backstop, could still be agreed before 29 March 2019?
Suella Braverman: Yes, I do believe the backstop could be dispensed with. I should just say that I was not specifically working on the Northern Irish matter while I was in the Department. My responsibilities covered legislation—in particular, the withdrawal agreement Bill, for which we prepared the White Paper, which was published in July—and borders more generally and outwith Northern Ireland. But on the Northern Irish question and the matter that you raise, Mr Chairman, yes, I think we could deliver a viable deal, a withdrawal agreement, covering citizens’ rights, covering an implementation period—I signed up to the implementation period—and covering other separation issues, which of course were covered, finally, in the final text, without the need for a backstop that involves us being members of a single customs territory.
Michael Tomlinson: Good afternoon, Mrs Braverman. You have just been asked about the backstop, and you have obviously heard and read about and seen the details of the Malthouse compromise. I would like your view on that and also on how it is being taken forward, given your previous role in the Department.
Suella Braverman: I did start off in January working on borders, and that involved my visiting Dover and Eurotunnel, Heathrow, Immingham and Southampton, which I found very informative. I was also able to meet with border technicians and experts. I requested, on the back of his report at the end of 2017, to meet with Lars Karlsson, and I found that a very useful meeting—one which gives me a lot of confidence about my previous answer that there isn’t a need for a single customs territory or for the UK to be a member of the customs union to avoid infrastructure between Northern Ireland and the Republic.
I am convinced that there is a solution to the Northern Irish border that does not involve, as I say, a customs union membership, but could involve existing administrative procedures. Lars Karlsson himself had extensive expertise in delivering the roll-out of effective and up-to-date authorised economic operator schemes and trusted trader schemes in ports like Dubai and in Brazil—two countries and case studies that he cited to me where he had recently worked with much success. And these were cost-effective and deliverable within a reasonable timeframe. Had we commissioned Lars when I met him, which would have been the spring of 2018, he would have estimated about 10 to 12 months to roll out a scheme for the Northern Irish context, which is much shorter than what was estimated in internal reports about maximum facilitation, which was used as an argument against invoking maximum facilitation in the ultimate Chequers plan.
There are also trusted trader schemes; there is a whole range of robust procedures in use today that actually increase the likelihood of detection of smuggled goods or illicit trading, because there is much more active engagement with the importers and exporters, and the intelligence gathered by the authorities and the customs and revenue bodies can be enhanced through some of those schemes. An AEO scheme rolled out in Northern Ireland would replicate and mirror, to a large extent, the EU’s existing AEO, which is part of their union customs code. You could have a system of pre-border checks and exemptions, bearing in mind that the vast majority of traders around this border are small traders. That, I believe, would be a viable solution in this context.
The Malthouse compromise has given me a lot of optimism over the last week, because I believe the fact that it has enabled lead spokesmen from both sides of the Brexit debate to come together is very encouraging. It also presents a way forward out of the mess we currently find ourselves in, and I would be very supportive of that if it were the final version of a deal presented to Parliament.
Michael Tomlinson: You have mentioned meetings and visits while you were in your ministerial role, I think, with Lars Karlsson and others. How far did you get along the journey with that? To a certain extent we have not seen the fruits of that; perhaps we will do during the course of the working group and the Malthouse compromise. How far were they explored? Were they brought to fruition within the Department, if not formally published?
Suella Braverman: I faced a battle to meet with Lars Karlsson in the first place. There was a huge amount of resistance. I thank David Davis for giving me some internal ministerial cover with the civil servants to instruct them to approach him and arrange a meeting and follow-up discussions. I believe, but this is just my view, that that resistance was because of a sense that it would not be helpful for a Minister to be engaging with an external expert who might have provided a viable solution that was at odds with their agenda of remaining in the customs union. I felt there was a deliberate attempt to obstruct such a meeting. Once I gathered the evidence directly from Lars, I was keen to keep presenting that to HMRC officials with whom I worked on the borders brief, and I wanted to get him commissioned in and contracted in some way as a consultant, which he was very happy to do, but it was just impossible. I was met with resistance and blockade and “No”, essentially. Then eventually the decision on a customs option was made in July and obviously we were not going with maximum facilitation but with the hybrid new customs partnership, and Lars Karlsson was deemed completely irrelevant as a consultant after that.
Michael Tomlinson: Very briefly, if I may, you say “their agenda” and a “deliberate attempt to obstruct”, and you say that “they” said no. Who is the “they”?
Suella Braverman: I should say I have no criticism of the excellent civil servants with whom I worked. I was very impressed with their professionalism and their knowledge and their energy; there is a hugely talented bunch of people at DExEU. I had an idea; I wanted to meet with Lars Karlsson. I asked my office to arrange it, to track him down, find him and call him in. That was met with a “No” from various civil servants in various policy departments, and that was when I escalated it to David Davis, which opened a door for me. We had those meetings, again with lots of last-minute advice—“This is not necessarily a good idea, this might be damaging to policy development,”— but I decided to go ahead with it. It was very useful, as I said. As I gathered the information, it was institutional. Various civil servants, with whom I worked, on whom I depended to arrange the logistics of this, were not keen. They just did not want to do this. It was very difficult to make practical progress.
I am not able, as a Minister, to get a contract together, meet up with Lars and say, “Sign here and let’s get the job done.” It needs to go through various processes. A business case needs to be made, and authorisation needs to be provided. It was impossible to secure those steps in the process.
Chair: Did you discuss any of this with Olly Robbins, for example?
Suella Braverman: I met Olly Robbins once, and very briefly.
Chair: Quite clearly, from what you have said, you were being obstructed. There is no doubt about that.
Suella Braverman: I felt I was being obstructed, yes.
Chair: Having said that, going back to Michael Tomlinson’s question about who did the obstructing, you said that you thought that the people you were working with in DExEU were doing the best that they could in the circumstances. So we can only infer from that the obstruction was coming from somewhere else.
Suella Braverman: Yes. It was people following orders, who were reporting to me.
Chair: From No. 10?
Suella Braverman: I can’t say. I don’t know.
Chair: Well, it can’t have been anywhere else because that is the hierarchy.
Suella Braverman: My suspicion is that it was either No. 10 or the Treasury, because this involved HMRC. On the borders brief, I worked with officials from HMRC, who were very good, I have to say, but ultimately they were accountable to ministerial guidance there. That is assumption.
Chair: So basically you were put in an impossible situation on this.
Suella Braverman: I felt I was. I felt I had a solution there. I felt it was not me being wild-eyed and crazy. I felt it was tested and at least worth exploring in more depth, and it was impossible to move it forward.
Chair: He was quite clear on the “Today” programme in the last few days, when I heard him in the early morning, that he had not changed his opinions and, furthermore, that he has a very substantial track record, which came from his engagement in Brussels.
Suella Braverman: Yes. He is an expert, and he is a serious person in this industry. As you say, Brazil, Dubai and the Netherlands are recent case studies. I have to be clear: he did not necessarily say, “Copy and paste what I did in Dubai for Northern Ireland,” and he does not totally eliminate technology, but he is an expert in AEOs and trusted trader schemes, and that would have been very useful for this issue.
Mr David Jones: To what extent are you satisfied that the UK will have sufficient influence over EU legislation that may apply to it during the transitional period, and afterwards, should we accept the withdrawal agreement?
Suella Braverman: Our influence will be minimal, if not non-existent. One of the reasons for my growing anxiety during my time at the Department was my increasing realisation that the text, as it was in very draft form after the March European Council, left the UK in a very exposed position and did not honour manifesto pledges, as I said before.
One of those areas of concern was new EU laws coming down to the UK during the implementation period. We would technically not be members of the EU. We would not have a right to attend meetings—this is set out in the text—automatically. We would have to get special permission in exceptional circumstances from the EU, if an issue related directly to UK interests, to attend particular meetings and summits, but essentially we would be at the mercy of the EU when it came to new EU laws. That is set out in black and white in the treaty.
Mr David Jones: That state of affairs would be incompatible with the repeal of the 1972 European Communities Act. If we were to accept this, presumably there would have to be further legislation that unwound the repeal of the 1972 Act.
Suella Braverman: There you get to the big problems, which were on the legislation for the withdrawal agreement—the withdrawal agreement Bill. One of the proposals for the legislation, which is in draft form—it is pretty much complete, actually, but waiting for approval of the deal to be introduced in the Commons—was the effect on the withdrawal Act.
As you know, section 1 of that Act repeals the ECA on 29 March 2019 at 11 pm. Subsequent legislation, in the form of the withdrawal agreement Bill, would strip that clause of any legal significance, because we were proposing to include a saving mechanism so that, notwithstanding the ostensible repeal of the ECA at 11 pm on 29 March, immediately following that, when the next Act came into force, its almost total effect would be reinstated. So the pipeline of the ECA, which is the pipeline that we use for EU law and EU-derived legislation to apply in the UK, would flicker away and then it would kick back into action instantly. That was a very difficult issue to resolve.
Mr David Jones: In other words, we would be left with an inferior form of continuing membership of the European Union.
Suella Braverman: Yes. EU laws would continue to apply, much in the same way as they do today, but we would not have any membership rights during the implementation period.
Chair: Do you remember a point I made to the Prime Minister last week? You may not know that I put the question to her about whether she would guarantee and instruct her officials to ensure that, in relation to the legislation that follows on the withdrawal agreement, if it is ever passed by Parliament, there will be an express provision in the second piece of legislation that implements the withdrawal agreement that reasserts, unequivocally, that the 1972 Act will be repealed. One Act can overtake another, as we know, and we do not want to get into that situation.
The Prime Minister said that she would ensure that that was the case and I am having meetings and discussions with the Attorney General on that question. I am hoping—in fact assuming, for the sake of argument, in the light of what she said on the Floor of the House—that we will see a provision in that second piece of legislation, if there is a withdrawal agreement, that will rectify the position that would otherwise have occurred. That is that the ’72 Act, because of the indefinite nature of the backstop and the nature of article 4 of the treaty, albeit connected to article 132 that extends the period of time—that we would still be repealing the ’72 Act.
I have had an absolute assurance on that point. I want to get that on the record and ask you whether you heard what I said and what you made of the reply. You are telling us that the withdrawal Bill is still in the works, and you do not know of any provision in that Bill at the moment that would continue to ensure the repeal of the ’72 Act at this juncture.
Suella Braverman: No. If we were to approve it, the Bill would be introduced. At the beginning of that Bill, it would amend the withdrawal Act to save the effect of the ECA—
Chair: I go back, if I may, before I bring in David Jones, to the provisions that have been given for the first time in our history to the Supreme Court and the courts to disapply and to quash any legislation, on which we have had extensive correspondence with the Prime Minister, which is on our website. That means that they would be able, in the light of the subsequent enactment, to disapply the previous Act—the withdrawal Act—section 1 of which repeals the 1972 Act. To say the least of it, this is a massive constitutional question.
Suella Braverman: The withdrawal Act will essentially be paused until the end of the implementation period, the extended implementation period or the backstop. We have gone through an extensive exercise—
Chair: You have actually seen the text of the Bill, so you know what it says.
Suella Braverman: Yes.
Mr David Jones: I have just one brief point. You say that the withdrawal and implementation Bill is almost good to go. Does that Bill deal with the issue of the Acts of Union 1800, which provide that there should be no disparate treatment of Ireland, as against the rest of the United Kingdom? The withdrawal agreement, if implemented, would treat Northern Ireland entirely differently from mainland UK.
Suella Braverman: In November, the draft Bill was complete, in that it covered citizens’ rights, the implementation period—the saving of the repeal of the ECA—financial settlement provisions and other separation issues. Everything was on pause and awaiting the Northern Irish backstop. I did not see any legislative drafting to do with Northern Ireland; I imagine that work has taken place since I left. However, there was no reference to Northern Ireland or the Acts of Union in the draft Bill that I saw.
Andrew Lewer: Notwithstanding what we have heard about the supremacy and continuation of EU law under the withdrawal agreement, there is a provision within it for a joint EU-UK committee with a remit to prevent and resolve disputes and oversee the agreement as it functions. Do you think that Parliament should have a role in scrutinising that joint committee? Perhaps I should ask whether you think Parliament could have a role in scrutinising that joint committee, and if so, how that would be best achieved?
Suella Braverman: Yes. There were two avenues of dispute resolution. The joint committee was one, for institutional, high-level questions of application of the treaty—not legal disputes as such—to be dealt with at a political or ministerial level. It was foreseen that the joint committee would comprise ministerial representatives or Executive-level actors. That is far as the agreement goes, in terms of setting out the structure and remit of the joint committee. It also covers a list of issues that it may deal with. I see a strong case for a parliamentary say to feed into a process of accountability and the resolution of issues in that political sense, yes.
Andrew Lewer: I will just lead on with that a little bit. Do you think there would be a case for this Committee to take on that role, given its background and expertise in the examination of European legislation?
Suella Braverman: That sounds like a very sensible idea to me.
Chair: Can you recall what happened with the ports regulation? I do not think you were necessarily in office then—
Suella Braverman: No.
Chair: It is a matter of public record. It was opposed by every single one of the 47 port employers and by all the trade unions in the United Kingdom as a whole. We fought it tooth and nail in this Committee, and also in a Standing Committee, but when it came to it, it went through.
I have never known, in my 34 years on this Committee—I have been on it that long—a single EU law to be overturned in Parliament. That speaks for itself. I do not know where anybody gets the idea that the arrangements that will be in place during the transitional period will benefit business. What do you think businesses are going to make of it when the penny drops and they suddenly discover that their competitors are passing legislation that will affect Scotland, Wales, Northern Ireland and England? Businesses are currently clamouring for this transitional period on the grounds that they need legal certainty, but what kind of legal certainty will they have if they are affected by the legislation passed over our heads by 27 countries, largely dominated by a caucus inside the Council of Ministers, no doubt led by Germany? What do you make of the prospect of this transitional period for business and the clamourings of the CBI?
Suella Braverman: The voice of business and any other interested parties will be silenced, effectively. They will not be able to have a voice or representation at the legislative level of the EU in this scenario. It is aggravated by the fact that the implementation period no longer has a strict time limit, despite what we were led to believe. It was supposed to be strictly time-limited. It could go on for an uncertain period of time, increasing and exacerbating the level of unknown for businesses and making it harder for them to make planning decisions.
Chair: So the withdrawal agreement could be construed as subjugation?
Suella Braverman: Yes. The aspect whereby we would be a rule-taker without any opportunity to be a rule-maker would definitely classify as subjugation.
Dr Whitford: As a Minister, what was your role in the negotiations with the EU on the UK’s exit? How well did you feel that you were supported by your officials and the wider civil service, particularly in the light of some of the comments you have already made?
Suella Braverman: I wasn’t directly involved in the negotiations. I was on the receiving end of the negotiations. That commenced after the March European Council, when the first draft of 70% of the treaty was agreed. You will remember the Council where David Davis and Michel Barnier stood up and had screens shaded green and yellow, with parts that were still unshaded; 70% was shaded green. Citizens’ rights, the financial settlement and the implementation period had been agreed. The Northern Irish backstop was unshaded—or non-existent at the time—and there was list of about 13 standalone issues, which were called “other separation issues”. They were really about transition matters at the point of the end of the implementation period, pending cases, goods on the market, and customs and excise arrangements.
I took that draft treaty and was responsible for getting legislation ready to reflect that, and for explaining the practical effects of what had been agreed to stakeholders and interest groups. As and when sections of the treaty were shaded in green and resolved, they would come back down to me. At times, I was able to feed in, but essentially I was not part of the negotiation strategy.
Dr Whitford: Obviously, you said earlier that you had issues in your role with being obstructed or at least not supported by civil servants—whether your own officials or others. Is that a fair summary of what you described earlier?
Suella Braverman: The issue with Lars Karlsson is a good example of that. Generally speaking, I think that the officials served me very diligently and well.
Dr Whitford: Was that issue the main one where you felt obstructed, or did you have several occasions where you felt that you weren’t able to take things forward?
Suella Braverman: The issue of the borders was one big fight that I had. Another area where I didn’t feel justice was being done—I did feel a sense of injustice—was on the conditionality of the money payment. I was led to believe the policy that nothing was agreed until everything is agreed, as set out in the December 2017 report. That being the case, the £39 billion that had been agreed that the UK would pay the EU would be a price for something in return—a free trade agreement—and we weren’t good for that money until a free trade agreement was forthcoming. However, that political position was in no way reflected in the legal text. The text I saw in March, right up until November, did not include any kind of condition on that payment. It did not include any mechanism for the UK to cease payments in the event that a certain criterion wasn’t met or an event wasn’t realised. I did make the case vociferously within the Department that we needed to inject some element of conditionality on this money—taxpayers’ money; a large amount of money—or else it could be fatal to the success of the agreement.
Dr Whitford: You describe injecting some measure of conditionality, but do you accept that some proportion of that money is not conditional on buying a free trade agreement but was the UK meeting obligations that it already has? Or do you think that the entire £39 billion was purely about going forward rather than recognising our obligations?
Suella Braverman: There is a very authoritative and extensive legal view set out in the House of Lords Committee report, which says that that money, in its entirety, is not legally owing. So there is that view, which I tend to support, but I am very mindful of the opposing legal view, which was presented to me regularly in the Department. It was that, if we are having an implementation period, we are essentially still a member for 2019, and that would be the £10 billion for 2019, and still a member for 2020, so another £10 billion for 2020. At the end of that implementation period, that second legal view purported that we would still have financial obligations for pensions and RAL—reste à liquider. I would say that part was more disputable, but that is how that legal view broke it down.
Dr Whitford: So the aspects such as pensions and ongoing commitments, you don’t particularly accept that part?
Suella Braverman: I think there is a weaker argument for the long tail of payments at the end of the implementation period, yes.
Dr Whitford: And if there was no agreement, you wouldn’t be concerned that the UK might be seen in the wider world as not having honoured its financial commitments, and that that might be damaging in itself?
Suella Braverman: If there was no deal, and there were no implementation period and we were to leave on a WTO basis, I would be very comfortable defending the UK’s position that there was no money owed to the EU.
Dr Whitford: Of paying nothing.
Suella Braverman: We would no longer be a member state. We would no longer be bound by our obligations or treaty duties. In the spirit of compromise and bearing in mind that the implementation period is there as part of this deal, where we are not at the table but still experiencing many features of a member state, you can make a case for the £10 billion and £10 billion for those years, but I would say that that is in light of the implementation period.
Dr Whitford: But outwith the implementation period, you don’t particularly accept the other aspects of having ongoing commitments?
Suella Braverman: Yes. That is correct.
Dr Whitford: Obviously, in this inquiry we have heard quite a lot around the views in No. 10 and the views in DExEU. Was that something that you experienced in the course of your responsibilities?
Suella Braverman: Towards the end, yes. Definitely. I guess on two occasions. The first occasion would be in the run-up to the publication of the Chequers paper. DExEU had been engaged in a long standing exercise of drafting what we thought would be a viable free trade agreement on all manner of sectors. It was a lengthy document, which covered areas in considerable detail. I read the evidence that Steve Baker gave you about the model for a Canada-plus-plus style free trade agreement—an advanced free trade agreement. That was essentially the model of the initial paper authored by DExEU. However, the ultimate product was not what we had all been working on—presumably it had come from No. 10. That is one example of where there were definitely parallel work streams.
The second example is the final publication of the text of the withdrawal agreement in relation to issues such as article 132 and the extension of the implementation period, which was not a policy position or negotiating mandate that I had ever come across through either Cabinet or Cabinet sub-committees.
Chair: So where did it come from?
Suella Braverman: That is a great question. I don’t know where it came from; it appeared suddenly. The first I heard of it was at the October European Council, when the Prime Minister mooted the possibility of an option to extend the transition as an alternative to the backstop. Her words were very deliberately chosen: it was just an option, not a firm policy position. That is how I understood it. I never saw any written documents reinforcing an agreed Cabinet position that the IP could be extended. The first I saw of it was article 132 in the final draft.
Chair: Of course there are huge implications, when you consider the question of indefinite extension and add to that the question of repealing the 1972 Act. Just to run this off: as we speak, this document is not signed and not initialled, and it is therefore no more than a piece of paper, although it depends on what happens when the vote is taken in the House of Commons.
Suella Braverman: Yes. The other issue is the political declaration. A version of it had been worked on, primarily by Dominic Raab, in the run-up to the November Council. The final version bore no resemblance to the piece of work that he had led.
Dr Whitford: Were you conscious at the time that there appeared to be two tracks running, or was it all a surprise when something else came out?
Suella Braverman: One those occasions, it was always a surprise.
Dr Whitford: Do you think that if there had been a previously agreed balance of responsibilities—in one of the Prime Minister’s very early speeches, she talked about consulting the EU and agreeing what she wanted from it before going there—it might have been easier to have achieved an outcome that was more widely supported, compared with having it change and evolve as a moving feast?
Suella Braverman: Yes. With hindsight, it is easy to say that. I was only there for almost a year—not even a year. I am reading David Davis’ evidence, in which he acknowledges that there was tension and that it could have been dealt with better or avoided by having a single author, but the Prime Minister was always the lead negotiator—even more so after July 2018. I think that was an attempt to clarify roles.
Dr Whitford: Looking from the outside, things always seem to be moving on the hoof—from the Lancaster House speech to the withdrawal agreement. What is it that the UK wants? Looking at think-tanks and media in Europe, what the UK wants seemed to be a revolving question. It seemed that the UK, whoever was negotiating, did not have the answer. Do you think that it would have made a difference to have first the debates about what the UK wanted from Brexit, then try to negotiate it?
Suella Braverman: I believed it was pretty clear what the UK wanted from Brexit in 2016. I did not think that there were any big questions. I think there have been very strong views on both sides of the debate, but the policy has been pretty clear and not complicated to understand.
Dr Whitford: But obviously there are trade-offs. If you want to leave the customs union and the single market, you gain something and lose something. That debate—asking whether it is worth this price to get that—does not seem to have been worked out in advance. Impact assessments and exactly what type of Brexit the UK is going for, how far away to go and the trade-offs of going further way and therefore having a degree of barriers—none of that was worked out in advance. It all seemed to move backwards and forwards during that time.
Suella Braverman: I generally feel it has all been complicated a lot more than it had to be. I think there was a very simple agenda to deliver and I do not think it was beyond our grasp. Donald Tusk made an offer of a perfectly viable free trade agreement in March; we should have agreed to that. We would not be in this situation now.
This has been clouded and muddied because of various forces conspiring to stop it from happening, frankly. I am afraid to say that DExEU was left behind in a lot of the process. If it had been the other way around, where we had people who really believed in the mission, had a clear idea of what it should look like, and were not fazed by confected problems or obstacles, we might not be in this position.
Dr Whitford: Which group do you feel were making that key decision not to take the Canada-plus free trade approach?
Suella Braverman: It is very difficult for me to point the finger at anyone, but it was the people in that negotiating room; people who were agreeing text with the EU and signing this thing off. They have to bear some responsibility, because it did not really reflect—
Dr Whitford: And you feel that was predominantly No. 10, rather than DExEU.
Suella Braverman: Definitely from July, No. 10 took full responsibility for the negotiations.
Richard Drax: May I put on the record my admiration for you, Mrs Braverman, for resigning and taking such an honourable and courageous stance under the circumstances? I will briefly paraphrase as I see it, and then perhaps you would agree or disagree. The aim to leave was a simple one. It was not to be complicated or muddied by deals or this or that, or how much richer or poorer we would be. It was simply to leave. We voted to leave the EU.
It is my view that the EU has held the upper hand throughout these negotiations because the Government, whose Ministers are very substantially remain, have wished to remain as closely aligned to the EU as they possibly can be. At the same time, whether intentionally or not, they have misled MPs and the public into thinking we are leaving. You have stated that when you look at the facts, we are not leaving. We could be stuck in it. Is that your view of why we are in this mess?
Suella Braverman: Yes. There is an inherent inconsistency between the message and the reality. We have great policy lines, which sound good on a television broadcast, in a speech or on a leaflet, but the reality will lead to a lot of disappointment, because expectations have not been met at all. It seems there has been a gradual erosion of those expectations, to the point that the reality bears no resemblance to what was promised. That is why it was difficult for me to defend it.
Richard Drax: Do you think that once article 50 had been initiated, if the Government had said the Departments, “Prepare for no deal. You have two years: get on with it, while we try to get a free trade deal,” we would be in a different position?
Suella Braverman: Definitely. We are the stronger partner in the negotiation, if you look at the facts: our trade deficit with the EU, our net contribution to the EU budget and our net contribution to EU security measures. There is a lot of dependency by EU member states—not just the smaller, poorer member states, but generally speaking—on the UK. We never fully inhabited that strength. We gave in at every point in the argument and we did not make the most of those strengths.
I agree that walking away with no deal would have definitely been a symbol and a manifestation of that strength. I think the EU would have come running and offered us a very good deal. In fact, that is not off the table. If we were to leave on a no-deal scenario, I am sure that is one of the strongest incentives for the EU, in the few months following, to come back and say, “Let’s reduce that £39 billion. Let’s offer you a good trade deal, which serves your interests.” In a very strong way, it would be a very big incentive to lead us to a good deal.
Stephen Kinnock: As we are in a somewhat philosophical mood about all of this, musing on why certain decisions were taken, I just wondered whether we can go back to first principles, which is the 52:48 mandate. Why do you think that the Prime Minister chose to interpret that mandate as having to leave the single market and customs union? One could argue that such a narrow vote is a mandate to move house, but stay in the same neighbourhood.
Suella Braverman: The nature of our democratic system is that majorities win elections and public polls. If we wanted to set a particular threshold, which rendered the vote acceptable, that should have been determined when we were having the arguments about the referendum before we got to it.
To say that the goalposts have to be moved and that 52% is not enough, but it has to be 65%, is an after-the-event tactic to render the result meaningless. I do not agree with that position. We don’t run general elections or other polls in that way. It was a decisive win. The turnout gives this vote a lot of credibility. It was endorsed at the general election the year after, when 80% of voters supported leave-backing parties. I don’t believe that we have to deliver a remainer’s Brexit, as I think it has been referred to, because of a 52:48 result.
Stephen Kinnock: You are right that when we go through a democratic exercise, you have the result that it delivers. But as the Prime Minister discovered to her cost in June 2017, a narrow result in a general election delivers a hung Parliament. By that logic, a narrow result in a referendum would deliver a certain form of Brexit.
As was said earlier, the only thing we know about what people voted for on 23 June 2016 is that they voted to leave, but what “leave” meant was never really defined until the Prime Minister’s Lancaster House speech. With hindsight, do you think it would have been better to have a much broader, national conversation about whether voting leave actually meant leaving the single market and the customs union? Who decided that that was what it meant? Was it just the Prime Minister and Nick Timothy?
Suella Braverman: To check again with the British people whether they properly understood what they were voting for?
Stephen Kinnock: No, I am not suggesting that. I think people absolutely knew that they were voting to leave the EU. But given that, for example, two months before the referendum, Nigel Farage said on “Question Time”, “Look at Norway and Switzerland. They are rich, happy and self-governing countries,” and Owen Paterson said, “Only a madman would leave the single market,” and a whole range of other so-called Brexiteers were banging the drum for the Norway option in the run-up to the referendum, would you not accept that there is an argument to say that there was a lot of confusion about what leave meant, because so many on the Brexit side were advocating what we would now call a soft Brexit?
Suella Braverman: I think there are many reasons why people voted to leave. Migration, sovereignty and trade are some of them. But I do not think that that undermines a basic vision of what leaving the European Union means. It needs to look like we are leaving the European Union and it needs to feel like we are leaving the European Union.
If we try to mix and match, and try to make it look like we are leaving, but actually in reality we are not, or some other mish-mash, which is trying to please everybody, we will fail. Ultimately, that is why this deal has failed, because it hasn’t been an unequivocal departure, as we have seen from the evidence today. That is only going to break trust in our politics and our democracy.
Any attempt to check again with the people, to verify whether they really knew what they were doing or to question it—this constant questioning has only been damaging for public confidence in this whole process. It was a clear, authoritative, huge vote, historic in its nature, and it is incumbent on all of us, whichever way we voted, to accept it. Unfortunately, we are in this position because many people in this Parliament have refused to accept it.
Stephen Kinnock: For the record, I absolutely agree that we should leave the European Union and that we should accept and respect the result. My point is about the fact that there is total and utter confusion about what leave actually meant, and that there are many, many ways to skin the cat. That has been at the heart of the confusion in Government and across Parliament. “Leave” seems to mean so many different things to so many different people.
Moving on to another point, on the backstop—
Chair: Before we move on to that, I would like to ask the witness a question relating to a point you made. If you consider the treaties as a whole, the European Communities Act 1972 incorporates all the treaties. There are voluminous consolidated texts that show anybody who cares to look at them precisely what the competences, the powers and the functions are. It specifies a customs union and it specifies a single market. I am putting this to the witness, not to you, Mr Kinnock.
The acquis communautaire—that corpus of law—specifies a whole range of legal requirements, which include the customs union and the single market. If we have said we are going to leave that and we are going to repeal that Act, which repeals all the laws that relate to it, do you find it rather difficult to imagine that somehow we could then extract from it the bits that we thought were desirable to stay in, like the single market or customs union? It just applies to the whole shooting match, does it not?
Suella Braverman: Yes. There are fundamental, emblematic and intrinsic elements to what membership of the EU means, and repeal of the ECA brings an end to those fundamentals of EU membership.
Chair: In our domestic law.
Suella Braverman: Exactly. But what we have is a kind of roundabout way of keeping that still having effect, but not. It is a façade, and it is not a real Brexit as a result. So yes, I agree with what you say.
Chair: But it can be if we follow through what section 1 of the withdrawal Act states, because then that achieves its objective. Sorry, Stephen, I want to come back to you.
Stephen Kinnock: Going back to the Lancaster House speech and the Prime Minister’s red lines, she said, “Right, so Brexit means leaving the single market and leaving the customs union, but also having no infrastructure on the Irish land border.” Do you agree that that third red line is fundamentally incompatible with the first two, and that that is part of the reason we have got ourselves into this awful mess?
Suella Braverman: No, and I think the presumption in your question belies the situation we have got into—this unacceptable position where membership of the customs union is seen as the only solution to avoiding a hard border. I fundamentally disagree with that. As I set out earlier, there are existing administrative, technical and—if you want, but you don’t even need them—technological resources in use today that could be applied to this context and would avoid the hard border but allow us to leave the single market and the customs union and, importantly, not annex Northern Ireland from the rest of the country.
Stephen Kinnock: But fundamentally, by putting that red line down, the Prime Minister gave the European Union the opportunity to state, perfectly accurately, that there is nowhere in the world and no border in the world that the EU has with a third country that does not involve checks and controls. Whatever view you take about these fantastical technological solutions that are out there, the fact is that by giving that red line—by putting that red line down—she fundamentally placed herself and the British Government in an impossible position, because she said, “No single market, no customs union, no hard border”, thus opening up the opportunity to the EU to say, “Well, there is nowhere in the world that this arrangement exists, so until such time as you can cook something up, we’re going to have to keep you in this arrangement”. Why do you think that such a fundamental strategic error—I mean, from your point of view it would be an error—was made?
Suella Braverman: If the EU have said that, and I know the remarks that you are referring to, why have they also said—and I’m quoting in terms Michel Barnier, why has he also said that in the event of a no-deal, the EU will not erect any hard border in Northern Ireland? The Taoiseach himself has said they won’t be responsible for putting up any infrastructural or border in Northern Ireland, and the UK has made that similar commitment.
The EU says a lot of things and I think we should look at the facts, and the facts are that all around the world there are, as I’ve said, mechanisms and methods that we can apply—with some goodwill; it will take some goodwill. And it will take political incentive. But it’s not impossible. It’s far from impossible and it’s eminently achievable. I’ve seen the solution with my own eyes, and I endorse the proposals that have been put forward subsequently in a better deal.
Stephen Kinnock: For your information on that, there was a meeting with Martin Selmayr on Monday with the Brexit Select Committee. What he said was that putting infrastructure on the border wouldn’t be immediate, but as soon as it becomes clear that there is divergence between the United Kingdom’s regulatory framework and the European Union’s regulatory framework there would have to be checks and controls on the border. That’s the position of the Commission and I’m assuming that the Irish Government would have to go along with that if they wish to remain a member state of the European Union.
Suella Braverman: And that is exactly where, with a free trade agreement and with a protocol or an arrangement for Northern Ireland, you can avoid any kind of border inspection post and a man with a wet stamp, an inspector of goods. You can do checks before the border at the exporter’s premises. As I said, you can have AEO and trusted trader schemes—they provide for exactly that kind of scenario. And it doesn’t have to mean infrastructure at the border.
Stephen Kinnock: Yes, although of course they will insist on having the safety net of the backstop for that.
Just one final question. If there is a deal—if Parliament votes something through—and that all gets signed off before 29 March, we will also have to ratify the withdrawal agreement implementation Bill, in order to give legal force to the withdrawal agreement. Do you think it’s credible, possible or realistic in any way to expect that we could do that before 29 March, and would you therefore accept that an extension to article 50 is now inevitable in any case, unless we leave with no deal?
Suella Braverman: I do not accept that an extension is inevitable. There are emergency procedures within our parliamentary rulebook to allow legislation to be passed quickly. It’s not ideal and as Dominic Raab said earlier it would be a challenge, but it’s not unprecedented. We have passed legislation in very short and truncated periods of time in the past.
The timing of this Bill was an issue that I was working on, and on various scenarios, and we hadn’t quite foreseen that we’d be in February without an approved deal when I was in the Department, I have to say; I’m sure they’re thinking about the timetables now.
However, if we were to get an approved deal next week, I don’t think we would need an extension of article 50, for example. But if we were to get an approved deal on 28 March, which would need implementing legislation, yes, I can see an argument to extend for a very narrow and strictly time-limited period.
Stephen Kinnock: Obviously, the political reality of the withdrawal agreement implementation Bill is that it gives force to, for example, things like the transition period. Given some of the views that colleagues on the Committee have expressed today about their deep reservations about the transition period and the so-called vassal state issue, do you think that the withdrawal agreement implementation Bill could just sail through without dozens of amendments being thrown at it?
Suella Braverman: It would be a challenge, definitely, but as I said, if we get a deal on 28 March, we are going to have to make some provision to pass legislation. That will be responsive to the circumstances and very unique—it would be an emergency situation.
Stephen Kinnock: Do you think it is acceptable that we still have not seen a draft of the withdrawal agreement implementation Bill?
Suella Braverman: The position was that it would be published immediately after the deal was approved by Parliament. That was an agreed position, but yes, I can see the case that in the interests of time, it might have been advantageous to publish draft sections to allow scrutiny to commence ahead of time, in light of the time issues. But that was the decision that was made.
Kelvin Hopkins: It seems to me that what you are suggesting is that it is just a matter of political will and that procedural difficulties are there just to cause a bit of a fog, but that if the negotiations were being handled according to the view that you and I share, we would be there by now.
Suella Braverman: I have no doubt about it: yes, I agree. But there have been obstructions and obstacles placed in the way at every step of this process, and it is regrettable.
Chair: And they seem to have come from No. 10.
Suella Braverman: I haven’t seen it with my own eyes, but that is my supposition, yes—No. 10 or the Treasury.
Geraint Davies: I know that you are concerned about getting out of the grip of the EU rules, and indeed the backstop, but aren’t you concerned that in moving towards a WTO regime, we would be just one member amongst 160, governed by a council of Ministers with a much larger commission and fewer British appointees, and overseen and enforced by a panel of elected judges who would basically stop us from doing any state intervention, enforce higher prices for generic drugs on the NHS and so on? You would very much be moving from a system of weakness—in your view, perhaps—to one of even more weakness. After all, in a nutshell, at the moment we are able to influence Europe from within, in terms of the rules, and have leverage with Europe as a big block within the WTO. If we move towards a WTO regime, we will not have influence over any EU rules that we will still have to obey, and even less influence in the WTO. How can that possibly be regarded as taking back control or sovereignty?
Suella Braverman: I disagree with the premise of your question. The UK was a founder member of the WTO.
Geraint Davies: So what?
Suella Braverman: I think we have a heritage when it comes to the WTO. It is the foundation of world trade that the majority of countries all over the world use perfectly well and profitably. Importantly, it does not mean signing up to a superior legal system that subordinates our own courts.
Geraint Davies: It does.
Suella Braverman: It doesn’t mean accepting uncontrolled migration, whereby our own elected representatives have no say over the number of people coming into this country or where they come from. It doesn’t mean following swathes of rules and regulations that are regulated by an unelected body. From a Brexit point of view of taking back control, signing up to the WTO really does not betray those objectives at all.
Geraint Davies: You are aware, of course, that the EU has just negotiated procurement arrangements with the WTO.
Suella Braverman: Yes.
Geraint Davies: That has been blocked for the UK by Moldova, so we would not be in a very strong position there. You will know that the panel of judges in the WTO can impose fines on member states for state intervention in their own state and overrule our courts, which the ECJ would not.
Suella Braverman: Of course there is going to be a dispute resolution mechanism. There are rules underpinning the framework of the WTO, but if there is breach or a transgression of those rules, it is right that there is a body that is independent and sits alongside it to resolve those disputes. But that is a very different situation from the European Court of Justice, which has the final say on our jurisprudence, is part of our legal order, and renders our domestic judges and lawyers secondary when it comes to the interpretation and development of our laws and rules. That is a very different situation from dispute resolution. All trade agreements have dispute resolution ingrained in them.
Geraint Davies: May I ask—
Chair: I think you have received the answer to the question, Geraint, which is that there is a different legal order. You have heard the answer, and the reality is that on no conceivable basis would anyone be able to say that the WTO was like the European Union in terms of the legal order. You have had the answer, and now we have to leave it at that.
Geraint Davies: Now we can be fined by the WTO, but not so much by the ECJ, so it is much worse.
Suella Braverman: Well, our own laws can be overturned by the ECJ.
Geraint Davies: The WTO can overturn our courts.
Suella Braverman: You don’t get the WTO quashing an Act of Parliament that has been passed in a sovereign way here. It is a very different situation.
Chair: Anyway, thank you very much indeed for your extensive evidence and for coming along this afternoon.