Withdrawal Agreement: Legal Opinion

Debate between Edward Leigh and Geoffrey Cox

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

No, no, no. We have not been attempting to secure alternative arrangements now. We have been putting forward the fact that, in the future, all those alternative arrangements are likely to exist, so the European Union has responded by saying, “We will set up a new, special negotiating track, we will negotiate with an increased urgency and to a new timetable and we will implement these”—they have defined them—“customs procedures and technologies and so on.” So it is not right to say that the same situation arises now. These systems will be developed over time and that is the purpose of the working group that the Union has agreed to set up with this country.

[Sir Edward Leigh (Gainsborough) (Con)]

I thank the Attorney General for being so patient when I have been working on this unilateral declaration for the past two months and I thank him for including it in the final agreement, but may I ask him a detailed question because the devil is in the detail? There is no doubt, having worked with academic opinion, that a unilateral declaration is absolutely binding as long as it is deposited at the time the treaty is ratified. The unilateral declaration makes it clear that there is nothing to stop the UK leaving the backstop if talks break down, but it has to be a unilateral, conditional, interpretative declaration; that is what international law states. We are signing and agreeing to this withdrawal agreement only on condition—that is why the word “conditional” is important—that, if the talks break down, we can exit. So can the Attorney General now use the word “conditional” to reassure the House?

[The Attorney General]

First, may I say to my right hon. Friend that I am extremely grateful for the dialogue that we have had and he was, in no small part, the author of the seeds of this idea. Much of the material that he and other distinguished lawyers have been able to contribute has led to the proposal that we have now adopted. But I say to him that the unilateral declaration in this case does not need to say “conditional” because it is not objected to by the Union and, if it is not objected to, and the withdrawal agreement is ratified by the Union, it becomes binding.

European Union (Withdrawal) Act

Debate between Edward Leigh and Geoffrey Cox

Tuesday 15th January 2019 Commons Chamber

[Sir Edward Leigh (Gainsborough) (Con)]

rose—

[The Attorney General]

I must make progress.

I say to my hon. Friends, as I say to Opposition Members, the EU will have to set up entirely different legal and administrative systems in order to set up the customs union that is enshrined within the backstop, yet Britain will pay not one penny of contribution to those complex administrative and technical systems which the EU will, on their side alone, have to finance. How long does the House really think that the EU would wish to go on paying for a bespoke arrangement in which they are paying tens of millions of euros to sustain a customs union that is simply on their own admission a temporary arrangement?

But even if that was wrong, there are the regulatory provisions under the backstop. They are standard non-regression clauses. They exist in free trade agreements all around the world. They provide us with the ability, if we wish to take it, of being flexible about the means by which we achieve the outcomes because all they do is require us to maintain parity of standards with the position we had when we left the European Union. Therefore, it does give us regulatory flexibility if we wish to avail ourselves of it and the European Union is faced with not a penny being paid, with tariff-free access to the customs union, with not having to obey the regulatory law—

[The Attorney General]

You upbraid me entirely justly, Mr Speaker, and I apologise.

[Sir Edward Leigh]

Everything the Attorney General says about the backstop may be true, but he knows that many of our hon. Friends are deeply concerned about this and we want an end date. I am not asking him for an answer now, but I see the Prime Minister and the Chief Whip on the Treasury Bench. There is an amendment on the Order Paper that has been selected by Mr Speaker, which could unite the party, or most of it. It is a compromise. If we can have an end date to the backstop, then we can move forward. I do not ask for an answer now, but I beg the Government to consider, over the next six hours, whether they should not accept these amendments because they would try to unlock this process and get it through Parliament.

[The Attorney General]

The amendment that my right hon. Friend has tabled would, in my judgment, not be compatible with our international law obligations. He may know and accept that, but it is certainly my view that it would not be compatible and therefore would be likely not to be seen by the European Union as ratification. It would certainly raise serious question marks over the amendment.

We need to examine the matter without the indulgence of believing that there is any other easy solution. It is sometimes said that the problem with the backstop is that it will not enable us to walk away. That is true, except in this regard: the question is what we would be walking away from. Would the other side regard it as something they would not wish to walk away from, or would it be an embrace that they would like to escape as well? If my hon. and right hon. Friends and Members of the House on both sides come to the conclusion, as I would urge them to do and as I have done after many hours of reflection, that it would be, as the hon. Member for North Down said, an instrument as painful to the European Union as it would be to us, it is a risk, weighed against the other risks, that we should take, if the consequence of not doing so is something worse.