Northern Ireland Backstop: Conditional Interpretative Declaration

Edward Leigh Excerpts

Thursday 21st February 2019 Commons Chamber

[Sir Edward Leigh (Gainsborough) (Con)]

On 23 June 2016, the voters of the United Kingdom gave their instructions to the Government by a majority of over 1 million. Since then, it has been both the duty and the policy of the Government to implement the result of this people’s vote—a vote which the people were promised was a full and final decision, and which the overwhelming majority of Members of Parliament promised to enact. In passing the withdrawal agreement, the Government may find it valuable to use an instrument of international law called a conditional interpretative declaration to clarify our understanding of the temporary nature of the backstop.

I have been a passionate critic of our relationship with the European Union for decades. There has been a fundamental difference between what the EU has always been and what we were told it was. In the 1970s, we were told that it was a common market—a mere economic relationship. Of course, given our geographical proximity, a great deal of economic integration and co-ordination makes sense. We want to facilitate trade so that our workers and businesses can grow in prosperity together. But the EU was always a project for a political union that the people of this country never fully understood or assented to.

It has been clear to me, and to many, since the Maastricht treaty that the EU’s trajectory and the desires of the British people were moving in entirely different directions. I questioned Maastricht from inside the Government in 1993 and was sacked for doing so—a fate that I hope does not befall the present Minister—and I voted for Brexit in 2016, as did 62% of my constituents in Lincolnshire. I am sure that my bona fides as a Brexiteer are established.

The proposed agreement with the EU consists of four legal documents. I want to use this Adjournment debate—a quiet moment for reflection away from the political hurly-burly—to go into this matter in some legal detail. The main agreement deals with citizens’ rights, companies being able to fulfil existing contracts, court cases being finalised and so on. These are the sensible and just features of an amicable parting of ways. Equally, we welcome the two protocols providing for continuing co-operation with Cyprus over our sovereign base areas and with Spain concerning Gibraltar. It is the protocol on Ireland, known as the backstop, which causes immense problems.

The proposed agreement deals only with the direct questions of how to disentangle ourselves from the European Union’s institutions. On 29 January, the Commons endorsed the amendment tabled by my hon. Friend the Member for Altrincham and Sale West (Sir Graham Brady) requiring that the backstop be replaced with alternative arrangements, and that is what we are negotiating in Brussels at the moment.

The weaknesses of the backstop are manifest. There are legitimate fears that, if negotiations for a permanent UK-EU relationship break down, we may find ourselves legally obliged to be stuck in a customs union without end. Indeed, we have read my right hon. and learned Friend the Attorney General’s opinion, which worries many people. Were we to be stuck in a customs union, it would be a complete betrayal of voters and the referendum mandate, not to mention the Government’s solemn commitments to implement Brexit.

Given the current state of play, it looks as though there are four options at hand. The ideal solution is for the backstop to be withdrawn and the protocol to be withdrawn from the withdrawal agreement. A new protocol could be submitted committing the UK and the EU to sorting out a trade facilitation agreement using electronic documentation, trusted trader schemes and remote electronic monitoring of cross-border traffic, with no hard border or any kind of physical infrastructure.

It is not impossible to get such an agreement in place by 29 March, but it is unlikely, unfortunately, given the strong opposition within the EU to changing the agreed text. They simply do not want to unpick the agreement. Indeed, they have made that clear many times.

[Jim Shannon (Strangford) (DUP)]

I thank the right hon. Gentleman for giving way and for putting forward his viewpoint in the Chamber today. No matter what the issue may be, the Unionist population in Northern Ireland are clear that they do not want a backstop, and if it is going to be removed, it has to be via a legally binding document that will reinforce and give us confidence in any process that goes forward. We do not want Northern Ireland to be treated any differently from the rest of the United Kingdom. I know that the right hon. Gentleman is saying that, so if we move forward, the backstop has to be removed or it has to be time limited within this term of Parliament because we can then control it in the House in the time that is available to us.

[Sir Edward Leigh]

I entirely agree with that. I have been working on this issue with international lawyers for some weeks precisely to try to implement what the Democratic Unionist party wants, first because that is the way to get this through Parliament and secondly because I agree with it. I agree with the DUP. In fact, I agree with the DUP on most things. If the hon. Gentleman will be patient, I will try to outline a legally enforceable way in which we can time-limit the backstop. That is terribly important. It has to be clear cut, legally enforceable and, above all, not subject to any kind of arbitration that is in any way in the hands of the EU. I am trying to get to where the DUP is, and if the hon. Gentleman will listen, I hope that I can help him out with a way forward. In fact, I hope that I can help out the EU and our Government.

We all know that the unfortunate thing is that the current deal cannot get through Parliament because people do not trust the EU not to spin things out, but the EU says that it will not unpick the agreement. That is why everyone says that there is an impasse. I am not sure that that is entirely correct. I think there is a way of proceeding.

I was saying before the hon. Gentleman’s intervention that we could get an agreement and get rid of the backstop altogether, but that is unlikely given the EU’s attitude. Secondly, there is a reasonable possibility that even without any amendments to the current agreement, “alternative arrangements” could start to operate on the Northern Irish border during the transition period. These would supersede the protocol and make it irrelevant before it could even be applied. Indeed, the Prime Minister has said many times that she does not even want the backstop to come into force. Unfortunately, but understandably, there is not enough trust in the Commons to rely on that happening.

Thirdly, there is the suggestion of a unilateral exit mechanism. It would be contained within the withdrawal agreement, which would be renegotiated, but the EU is unlikely to agree to any amendment that allows the UK to exit from the backstop if negotiations have broken down, without the EU’s consent. That is where we are at present. Even if such a thing were agreed, the EU could easily prevaricate and deny negotiations had broken down. That is why I made the point earlier that it is important that nothing is subject to international arbitration.

That leaves us with a fourth option: a clear time limit—it would be difficult to arbitrate about that, as we would have reached the time limit or we would not—or an end date for the backstop, which can be obtained by a conditional interpretative declaration. That is what I am now talking about.

I am not sure that in these debates we have had, because of the short time limits that we have been given, anybody has had the time to go into the legal background to this, so it is important that we put it on the record. As far as I know, my understanding of international law is correct, but of course, we have the Minister and my hon. Friends here, and they can put their own viewpoint forward. At least we can get this debate on the record. Let me try to explain.

There is a long-established practice of countries making unilateral statements when they ratify a treaty clarifying how they interpret the wording of a particular aspect of the treaty. The United Kingdom can interpret the wording in the agreement that the backstop is

“intended to apply only temporarily”

as meaning it must have an end date. What else is temporary? It has an end date, so it must end after a specified period. Such a declaration would be subject to the same rules that are applicable to reservations—another term of art in international law—but would not be a reservation itself, as these cannot be applied to bilateral treaties. Even if the other three options were pursued, whether individually, sequentially or simultaneously, the conditional interpretative declaration would be useful to have on hand already if the first three options ceased to be viable, or if the EU would not negotiate on that basis.

As international law provides that the rules for declarations follow the rules for reservations, it is useful to consult the United Nations International Law Commission’s “Guide to Practice on Reservations to Treaties”. Guideline 1.2 defines an interpretative declaration as

“a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.”

A conditional interpretative declaration is a more forceful variant of this instrument of international diplomacy whereby the United Kingdom would assert that its consent to be bound by the withdrawal agreement is dependent upon the interpretation that the backstop has an end date.

Lest one think that interpretative declarations are just a back-door way of applying a reservation to a bilateral treaty, it should be clarified that their applicability is much less extensive than that of a reservation. Conditional interpretative declarations cannot negate any part of a treaty. That is a vital part of what I am arguing. I am not trying to negate any part of the withdrawal agreement.

These declarations can only constrain the meaning given to part of a treaty. A state’s declaration when ratifying a multilateral treaty does not stand in the way of that state remaining a party to the treaty. With a conditional interpretative declaration to a bilateral accord, the outright rejection of the declaration by other parties means the treaty would not come into force. I am going to go into this in more detail in a moment.

[Sir William Cash (Stone) (Con)]

I want at this stage to ask my right hon. Friend to get on the record the fact that, of course, this is only a draft withdrawal agreement. Furthermore, it is not signed; we know that. If signed, it would be, prima facie, a treaty. Would the question of a manifest violation of our internal law arise if the consequences of what was in the withdrawal agreement vitiated the constitutional integrity of the United Kingdom in relation to Northern Ireland?

[Sir Edward Leigh]

That is an interesting political argument, and I am not sure I am qualified to give a firm reply. However, there is clearly a lot of concern in the House of Commons, and if the EU is following debates such as this one, it should be aware that there is no way in which the House of Commons will ever vote for any agreement that in any way divides up the United Kingdom. I think we have to make that absolutely clear. If it wants to get a deal through, it has to try to listen to creative solutions, such as the one I am advocating.

I presume that the EU is absolutely sincere in saying that it wants a deal and that it is sincere, as Mr Juncker made clear today, in saying that no deal would be catastrophic not just for the United Kingdom and the Republic of Ireland, but for the EU. I presume it is sincere, and it has to understand what my hon. Friend has said and find a way around it.

[Sir William Cash]

I want to add a short and simple point to my right hon. Friend’s comment that this would be a political consideration. I used the words “manifest violation”, which is in fact a term of art that arises under article 46 of the Vienna convention. I thought I would put it on the record that this is not political, but legal.

[Sir Edward Leigh]

As always, I am very grateful to my hon. Friend. One of the advantages of these debates is that we can get such legal points across and put them on the record, and I am grateful to him for making that clear.

With a conditional interpretative declaration to a bilateral accord, the outright rejection of the declaration by the other party means the treaty would not come into force, as I said before the interventions. While there is every chance that the EU might object to a conditional interpretative declaration, that objection might fall short of outright rejection. I want hon. Members to listen to that very carefully, because I am trying to find a way forward for Mr Juncker. If they like, I am actually trying to save his face. I am trying to give him an opportunity to object, but not to indulge in outright rejection.

The EU could argue that attempts during negotiations to achieve an end date were rejected, and I am sure it might start by arguing that. It might also argue that an end date would be incompatible with the concept of the three protocols forming an integral part of the agreement, as provided for in article 182 of the withdrawal agreement. However, perfectly valid counterpoints to those objections exist. We would need to argue that our declaration is compatible with our commitment to use “best endeavours” —a very important phrase—to negotiate “alternative arrangements” so that, as provided for, the backstop applies “temporarily”, if indeed it is ever applied at all. That is a fundamental point.

The fact that the backstop would not necessarily come into force under the terms of the agreement means that, in my view, it is not actually integral to the agreement at all. The termination of the backstop within a reasonable amount of time is fully in accord with the agreement, rather than an amendment to it. I therefore think that the arguments in favour of the applicability of just such a declaration are very strong.

What about the European Union’s likely response to such a move? There are four main possibilities. First, it could accept our interpretative declaration and move ahead with obtaining the consent of the European Parliament to the withdrawal agreement. This might include making a political protest, while accepting the declaration’s legality and applicability. That is the ideal response so far as we are concerned. As guideline 1.6.3 states:

“The interpretation resulting from an interpretative declaration made in respect of a bilateral treaty by a State or an international organization party to the treaty and accepted by the other party constitutes an authentic interpretation of that treaty.”

In other words, we would have obtained a legally binding commitment from the EU to end the backstop—victory.

Secondly, the EU could reply with an assertion that the interpretative declaration is in effect an attempt to impose a unilateral reservation, and therefore has no legal validity, but at the same time agree to negotiate solely on the question of an end date for the backstop to solve this issue head-on. This would mean it had abandoned its previous insistence that no further negotiations were possible—again, a way forward.

Thirdly, the EU might reply that the interpretative declaration has no legal validity, but request further negotiations in the hopes of obtaining something of value in exchange for giving way on an end date for the backstop.

[Martin Vickers (Cleethorpes) (Con)]

I commend my right hon. Friend for all his work on this issue, and for securing this debate. Unlike me, he is an eminent lawyer, and I am trying to get my head around some of the complexities of this issue. If we invoke this interpretative declaration and the EU objects, is that legally challengeable, and if so in what court?

[Sir Edward Leigh]

I think the EU probably would object politically, but that is not enough. That is the point. If it does not want the interpretative declaration to have effect and provide an end date for the backstop, there is only one way out of it: it must refuse to ratify the treaty. A protest or talk of further negotiations is not enough, and that in a sense is the beauty of this. That is why we have these vehicles in international law, and why they have been used on several occasions in the past by countries such as Argentina and others.

There is no point protesting. My hon. Friend says that this is a complicated legal argument, but it is not. It is terribly simple. It is incredibly simple. Under international law one can say, “We interpret this treaty in such a way.” We can deposit that when we ratify the treaty. It is not a codicil as such or a letter; it is deposited with the treaty and has all the legal enforceability of a treaty. If those who are ratifying the treaty with us want to escape from its obligations, there is only one way out: they have to refuse to ratify it. I suggest—I will make this clear again before I sit down—that for political reasons the EU would be unlikely to do that, because it would put all the onus of a no-deal scenario on to it.

[Emma Little Pengelly (Belfast South) (DUP)]

I thank the right hon. Gentleman for securing this debate—what he says is incredibly interesting, and I defer to him absolutely because he knows much more about this issue than I do. Could there be a situation where the UK makes a conditional interpretive declaration? He has indicated that such a declaration could not negate an aspect of the treaty, but could the EU come to the conclusion that it is not a valid interpretative declaration, due to the fact that it is trying to do something it cannot do—to negate something—and that because it is not valid the EU can ignore it, so the scenario that the right hon. Gentleman has indicated would not arise?

[Sir Edward Leigh]

That is an interesting point. I am interested in how the Minister will respond, but I think I can give a firm and strong reply. There is no wiggle room around this. The EU cannot say, “Well, you made this interpretative declaration. We don’t agree with it. We are going to carry on and ignore it, and we will impose this backstop on you forever.” There is only one way out of it. I had better be careful in what I say, but I think I am right in saying that at the time of the ratification of the treaty, or within a reasonable time limit, the EU has to refuse to ratify the treaty, otherwise it is bound by it and that declaration is part of that treaty. As far as I am aware, there is absolutely no wiggle room. I know this issue is terribly important for the DUP. There is a lack of trust, and the DUP wants to shut down all possible wiggle room for the EU to get out of this. As far as I am aware, however, there is no way out other than for the EU to refuse to ratify the treaty. If the Minister disagrees with that he can say so when he responds to the debate.

[Emma Little Pengelly]

Could the right hon. Gentleman clarify that point? In the sphere of international law and disputes, if such a declaration is made and there is a dispute about the validity of that declaration—for example, if we believe it to be valid, but the EU does not—how will that issue be resolved or arbitrated? If there are two inconsistent positions, the EU could refuse to react by ignoring and refusing to accept the validity of the declaration. In international law, is there a clear arbitration pathway for that?

[Sir Edward Leigh]

The hon. Lady asks how it could be resolved by the EU. It simply refuses to ratify the treaty. There is no deal—end of story. The interpretative declaration falls, the withdrawal agreement falls. We have made it clear that we are only going to ratify the treaty on the basis of the interpretative declaration that there is an end date to the backstop. They say, “We don’t agree with that, so we’re not going to ratify the treaty”, and that is the end of it.

We cannot impose this. I think people have misunderstood in thinking that we can somehow impose this idea I have been talking about on the EU. We cannot impose our ideas on the EU, but it has to make it clear that it will refuse to ratify the treaty.

[Sir William Cash]

Would it also be relevant to consider the situation whereby a reservation by one party to a multilateral treaty is only binding on another party when the second party has not made an objection? That, I think, is part of the parameters within which my right hon. Friend is making his argument. But of course it is not just a matter of whether they refuse it; it is whether they make an objection. Is that not something that also ought to be brought into the debate?

[Sir Edward Leigh]

Yes, it should be brought into the debate. There is no way a party can ignore the interpretative declaration and argue later in a court of international law that there were not aware of it or that it has no validity. It is pretty clear that this is the time to refuse to accept it.

There is, by the way, an argument—I do not want to get into this level of legal detail—about bilateral and multilateral treaties and letters of reservation, which I have talked about in the past. If I have talked about letters of reservation I apologise, because this would I think be a bilateral treaty with the EU, and therefore interpretative declarations are a more appropriate vehicle than letters of reservation. But I think that is almost to become too embroiled in legalisms and legal descriptions. The important thing is that the House understands that there is a way forward.

I was setting out the various scenarios for what might happen. Fourthly, the EU might reply that the submission of the interpretative declaration in fact invalidates the UK’s ratification of the withdrawal agreement and refuse to move on with obtaining the European Parliament’s consent so that the agreement can be fully ratified and come into force. Aside from the arguably dodgy legal grounds the EU would be on, because we would only be interpreting something that the withdrawal agreement says is the view of both parties, that—I have said this already, but I emphasise the point—would also have the effect of shifting responsibility for a no-deal Brexit from the UK on to the EU.

If we ratify the withdrawal agreement with a conditional interpretative declaration providing for a backstop end date, any ensuing deadlock could be ended in a single stroke by the EU simply deciding to accept the declaration. Again, it must be emphasised that under the terms of the backstop protocol it is perfectly possible that the backstop might never enter into force at all. The withdrawal agreement states that its

“provisions shall apply unless…they are superseded, in whole or in part, by a subsequent agreement”.

Both the UK and the EU are committed to “use their best endeavours” to conclude an agreement superseding the backstop by the end of 2020, the minimum transition period.

The essential purpose of a conditional interpretative declaration, then, is to achieve, before the end of the time limit, a set of trade facilitation procedures, predominantly by the extension of existing electronic customs procedures applied by the UK to imports from non-EU countries. It is vital that a conditional interpretative declaration brings the backstop to an end without being reliant upon a phrase such as, “subject to the withdrawal of negotiations”. That is a very important point. I know that some in the Government have argued that we could get some sort of codicil or declaration around a breakdown in negotiations, but the trouble is that all that is subject to arbitration. The EU could argue that it was still using its best endeavours to bring negotiations to an end and that it wanted to go to arbitration. That is where all the difficulties would come in and that is why I think that the end point date is much the best way of proceeding.

[Sir William Cash]

On that point, if the arbitration arrangements to which my right hon. Friend is referring are by reference to the arrangements of the joint committee arbitration panel, that ultimately, insofar as it engages with European law, will be adjudicated by the European Court of Justice. That, of course, takes us back to a point we could not accept.

[Sir Edward Leigh]

I am really trying to find a way forward for the DUP to support the deal. I am trying to help the Government in all this. I know that one thing the DUP will never accept is anything where there is a whiff of arbitration by the EU, because it does not trust the EU, so we have to close that down. It is opposed to anything that may be subject to arbitration, and I understand its fears.

So long as one side is willing to talk, there is a debate about whether a breakdown in negotiations has been reached, so we have to be careful with that way forward. I am talking about a small legal step that is legally in line with the agreement but that politically would produce a major change, putting the UK on a better, more equal footing with the EU in the forthcoming negotiations on our permanent future relationship.

The EU does not want a no-deal Brexit, or that is what it has said. If the current deadlock continues and the EU forces a no-deal Brexit upon us, personally, I believe that it could be manageable. It might put us back in the driver’s seat and I should think that we would be able to conclude bilateral agreements to continue on current terms until long-term agreements are worked out. Given that we would continue our membership of the World Trade Organisation, its set of trade rules would apply in this situation, which means that in a sense it is not really no deal at all, and it certainly is not “crashing out”.

I know, however, that businesses are desperately seeking reassurance and that there are political problems, which I do not need to go into at the moment, about no-deal outcomes. I know that many farmers and agribusinesses in my constituency in Lincolnshire want to know the trading context of the coming years so that they can plan and adapt accordingly. While the withdrawal agreement is far from perfect—that is the nature of compromise—it delivers on some essentials, and we need to make good on our promise to the British people to deliver Brexit on time.

In conclusion, I hope all this is helpful. It is designed to try to achieve a compromise. It will not please everybody, but if we are not prepared to compromise, if us Brexiteers and our remainer friends try to get everything we or they want, one side or another may be in for a very big disappointment. I do not want to take any risks with Brexit—I am sorry, that is my view. I think that would be catastrophic for the Government. We have to deliver Brexit on 29 March, or within two or three weeks thereafter to get the proper legislation through. We have to get through a deal that Parliament can accept, and I hope that what I have been talking about this afternoon may be one small step in making that possible.