Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Kerr of Kinlochard Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

I am obliged to the most reverend Primate the Archbishop of York. I agree with his observation that ultimately we are concerned with a political, not legal, decision. We have to remind ourselves that the withdrawal agreement is the means to an end, not the end in itself. Either we leave on 29 March without any deal in place, because the law has already determined that that is our exit date, or we can leave sensibly, with a withdrawal agreement that takes us into the realms of further negotiation for our future relationship. There is no reason to suppose that as a consequence of that further move we are ever going to find ourselves in the backstop, let alone considering how to come out of it.

[Lord Kerr of Kinlochard (CB)]

There are two other options. We could of course change the law and we could take an extension under Article 50. I think there are new elements in the new texts. I do not think they remedy what is, for me, a humiliatingly bad deal, but I see two new elements. First, there is a greater urgency—or an impression of urgency—in the treatment of the search for alternative arrangements to the backstop. The impression created is that the philosopher’s stone will be more actively sought. That does not guarantee that the philosopher’s stone will be found, and that is the risk that the noble and learned Lord, Lord Mackay of Clashfern, might want to bear in mind as well.

The second point is more legal than political. I see a change in the treatment of the risk of being trapped in the backstop because the European Union breaks the commitment in Article 5 of the withdrawal agreement to exercise good faith. As the Minister said, however, that is a vanishingly small risk. As the noble and learned Lord, Lord Goldsmith, said, the real risk is that the search for a mutually acceptable solution—a workable alternative arrangement—continues for some considerable time to prove fruitless. That is the real risk. Alchemy is like that. Does the Minister agree? Does he also agree with Mr Varadkar that the texts are perfectly acceptable because the withdrawal agreement has not been reopened and the backstop not been undermined?

[Lord Keen of Elie]

My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?