Northern Ireland Backstop: Conditional Interpretative Declaration

Emma Little Pengelly Excerpts

Thursday 21st February 2019 Commons Chamber

[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.

--- Later in debate ---

[Sir William Cash (Stone) (Con)]

I want to make just a few comments. I pay respect to my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) for coming forward with this ingenious and no doubt carefully analysed proposal. However, because of the importance of this question, I would not want any smoke and mirrors to come out of this or, indeed, the mouth of the Attorney General when he makes his statement, as I believe he will in due course. I am not sure about its timing at the moment, but hon. Members may recall that I raised this question in the exchanges a couple of days ago, when I said that my European Scrutiny Committee is looking carefully at this matter.

Furthermore, there is the question of the validity of the Attorney General’s opinion or statement, or whatever form it takes when he makes it. It is something that ought to be done at least by Monday of next week to give everybody an opportunity to assess its nature—including some points that my right hon. Friend has made in this debate—to be sure that when he does make such a statement, it stands up. What we do not want is a smoke-and-mirrors operation. We do not want anything that will sound terribly important but, in practice, turns out to be effectively of less significance than it might sound when it is first uttered.

We had this situation during the Iraq war, when I was shadow Attorney General and I sought the opinion of the Attorney General, who was in the House of Lords, through various questions that I raised about him giving an opinion. Eventually, he came forward with a truncated opinion. Subsequently, despite the fact that it silenced a lot of critics during the debate itself, it would be fair to say that, actually, they were blinded by science and did not really know quite what he was talking about because it all came out so quickly. That is what we must avoid, which is why, as Chair of the European Scrutiny Committee, I am insisting that we get plenty of time for proper examination of the wording that the Attorney General, who is in Brussels discussing this very question, comes up with.

I feel that that is an important warning to put down as a marker. We do not want to be bounced. With Chequers, the Cabinet was bounced—there is no doubt about that; the Government had been planning it for about 18 months. We do not want another bouncing operation. Were my right hon. Friend to put forward his proposal and after consideration—I know it has already gone to the Attorney General—his thinking were built into the discussions that our right hon. and learned Friend is having in Brussels as we speak, it is incredibly important that the House is not bounced by it. It is difficult enough—my right hon. Friend and I are pretty much here on our own, with the exception of our hon. Friend the Member for Cleethorpes (Martin Vickers) and the hon. Member for Belfast South (Emma Little Pengelly). The House will be packed when—if—a statement is made on this subject. Before then, it must have been properly assessed and analysed, and any problems that might arise anticipated.

Let me give an example. As has been stated, the Attorney General in his advice to the Prime Minister concluded that in the situation of the backstop being activated

“the Protocol would endure indefinitely until a superseding agreement took its place”.

There is not even a mechanism for the EU and the UK to agree on termination of the backstop if negotiations were to break down. The Attorney General’s advice was restricted to the text of the protocol; he was not asked to consider whether the impact of the protocol could be constrained by a UK unilateral statement in the form of a conditional interpretive declaration.

[Emma Little Pengelly]

Unfortunately, I have to leave shortly, or I might miss my flight—I may do so anyway. This debate is incredibly interesting. I concur absolutely with what the hon. Gentleman is saying. What is important in all this is not a discussion of what is legally possible, or even what is legally probable; what many of us in the Democratic Unionist party and across this Chamber want is what is legally certain, in so far as legal certainty is possible to achieve. There are lots of interesting ideas, but that is critical: we must all be sure of the legal certainty, in so far as that is possible, before we can agree the way forward.

[Sir William Cash]

I am deeply grateful to the hon. Lady because she expresses exactly my line of argument. I hope that it is understood that this is not a matter of being obstructive for its own sake. It is incredibly important that the House is not bounced, or confronted with smoke and mirrors or something Members do not completely understand, but then they all go off and vote and afterwards someone says, “Actually, that doesn’t stack up.” I know that my right hon. Friend the Member for Gainsborough entirely agrees with me on that, and I know the Minister does, too—