Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Baroness Hoey

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

[The Attorney General]

Well, my hon. Friend will know that as an Attorney General I simply could not give countenance to the idea that this country would break its international legal obligations. As I have pointed out to the House, there is a right for the United Kingdom to terminate this agreement. If fundamental circumstances change, in the view of the United Kingdom, it would attempt to resolve the matter within the joint committee and it would attempt to resolve it politically, but if, ultimately, with the sovereign right of this House and of the British Government at the time, the United Kingdom took the view that those fundamental circumstances had indeed changed, it would have an undoubted legal right to withdrawal from any treaty.

Let us be clear about these kinds of absolute interpretations of black-letter text. A sovereign state has the right to withdraw if a treaty is no longer compatible with its fundamental interests or, to put it a different way, if fundamental circumstances have changed. I would say that apart from that, of course this country could resile from its commitments, but it would be unwise and it would not be in the tradition of this country to do so. In those circumstances, it is perfectly true that the only remedies the Union would have would be to take countermeasures, and no doubt it would pollute the atmosphere for fruitful relationships between us, which is precisely why this country will never do it, and neither would the European Union.

[Kate Hoey (Vauxhall) (Lab)]

I am not a lawyer, and neither are millions of people watching today. I obviously defer to the Attorney General’s advice, but will he tell people why the United Kingdom, a sovereign country, would think of signing up to anything—we signed up to the European Union and at least there was a way out of it through article 50, although it has taken a long time—that does not allow us simply to say, “This is not working, we are not going to sign up to this and we are leaving”?

[The Attorney General]

We have made a solemn pledge to the people of both Northern Ireland and the Republic of Ireland that the border will be guaranteed never to be a hard border. That required the United Kingdom to say that in all normal circumstances we will not depart from that pledge. I repeat the point that I made to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg): in the case of a fundamental change of circumstance, which is ultimately the sovereign right of this House and the Government to determine, the United Kingdom could withdraw, pursuant to customary international law. So it is not true to say that there is not ultimately the right of this House and the Government of the country at the time to exercise their discretion to do so in those circumstances. But in every other circumstance, we have said to the people of Northern Ireland, “We will ensure that your lives will be able to continue as they do now at the border.” I say that that act was worthy of this House, worthy of the Government and worthy of the British people, and it is one that is worthy of support.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Baroness Hoey

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

Evidence of wilful intransigence, evidence of refusal to engage, evidence of refusal to entertain alternative proposals or alternative means of achieving the outcomes that both share: that type of evidence, cumulatively, could amount to a case of bad faith, but each situation is facts-specific. It is not possible to identify beforehand, but those are the kinds of things that would be relevant.

[Kate Hoey (Vauxhall) (Lab)]

The Attorney General has been very honest about the downside of this backstop, and that is even without the legal advice, so we dread what we would actually see in the legal advice, if we could see it.

On Sunday, the Secretary of State for Northern Ireland told Northern Ireland’s “Inside Politics” with Mark Davenport that even if the backstop kicks in, Great Britain will stick to the same rules as Northern Ireland. Will the Attorney General have a word with her? She is going around Northern Ireland on a tour and saying some things that are actually not accurate, giving the people of Northern Ireland a very wrong impression about what this agreement means.

[The Attorney General]

The regulatory regime in Great Britain will be a matter entirely for the Government of the United Kingdom. It is permitted and agreed under the protocol that they can maintain their regulatory regime in the way they choose, in which case they could choose to maintain, as I have no doubt they would wish to do, regulatory parity with the position in Northern Ireland. That is all the Secretary of State is saying, and I see nothing controversial in that.