Withdrawal Agreement: Legal Opinion

Dominic Grieve Excerpts

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

[The Attorney General]

What I hope will not be lost on my hon. and right hon. Friends is why the hon. and learned Lady is insisting and pressing upon them the facts and matters that she has just been drawing to their attention. It could be, I wonder, that there is some ulterior motive in her concern about the absence of a unilateral exit mechanism in all circumstances.

Turning to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect—as anybody of his distinction should be listened to—I take issue with some of his comments. For example—my opinion sets this out and other lawyers are commenting to that effect this morning—the hon. and learned Lady does no justice to the fact that these measures and improvements do facilitate, and mean that there is a reduction of risk in, our being able to prove and demonstrate bad faith or want of best endeavours. She says that we could not terminate, but there is in fact in my opinion a clear pathway to termination.

As the hon. and learned Lady knows, I wrote in my opinion that if in the circumstance that we got a declaration from the arbitral tribunal that there had been a lack of best endeavours, having regard to the accelerated pace of negotiation which this new agreement now imposes, we could then move to suspend our obligations, if we wished to do so, under the protocol. If that suspension was prolonged, we could invoke article 20 to argue that it was no longer necessary because the inaction of the European Union demonstrated that it must think that it was no longer necessary, and that could lead to termination. It is therefore not entirely true to say that there is no way in which the provisions could be terminated. I say to the hon. and learned Lady that suspension, in these circumstances, is as effective as termination, because the only way in which the EU could restore the position would be for it to come back to the negotiating table with genuinely new proposals.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I thank my right hon. and learned Friend for his statement. I have no reason to disagree with his conclusion in paragraph 19 of his opinion, and I commend him for standing up for his office and speaking truth to power. However, I have one query about paragraph 7 of his advice, in which he describes the joint instrument as representing

“materially new legal obligations and commitments”.

He will of course be familiar with article 31, paragraph 2 of the Vienna convention, which says that such an instrument can have legal force and be binding only in the sense that the parties cannot later alter or deny what they have agreed and that it is not a treaty in itself. In those circumstances, is it not the case that the breaching of the best endeavours obligation in itself makes no difference? The only difference is if there is bad faith, and that in fact was contained in the original agreement that we signed.

[The Attorney General]

I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.