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.

EU Criminal Policy

Debate between Geoffrey Cox and Baroness Hoey

Wednesday 25th January 2012 Commons Chamber

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said one very wise and pertinent thing. It was not the only wise and pertinent thing he said, but it was one that struck me, and that was that it is almost invariably the case that it is undesirable to introduce into a mature and well-developed legal system another layer of legislation that is already covered satisfactorily by domestic legislation.

I recall that in the 1990s I had practical experience of such an occasion, when the European Union introduced its own sanctions on Serbia. It introduced a directly applicable regulation in exactly the territory on which this country had already legislated under the United Nations Act 1946. I recall that the case in which I took part challenged the domestic legislative regime on the basis that it occupied territory in which the European Union had legislated and that the two regimes, minutely analysed, could not be seen to be compatible. Not only were they not compatible in their substance, but they were incompatible in the sense that it is well-established case law in the European Court of Justice that any legislative activity by the European Union must take precedence and primacy not only in the substance of its impact and effect but in its appearance. In other words, the legislative authority of any particular action in a member state, once the European Union has legislated, must be seen to emanate from the European Union. To that extent, it is an extremely intolerant legislative authority.

That means that one must examine extremely carefully—I see that the Secretary of State for Justice is doing so as regards the market abuse framework—whether the introduction of European Union law into a sphere that is already occupied by domestic legislation will cause such a complicated unintended consequence. I recall that the Secretary of State for Trade and Industry at the time was poised with an order to lay before the House in case the Lord Chief Justice in the Court of Appeal accepted the arguments that I and others were advancing. He was ready to go that morning, because of the chaos that would have ensued had the domestic legislation been struck down as incompatible with the European Union’s legislative action.

It is extremely undesirable that that should happen and, having listened to the various balances that have been struck by the right hon. Member for Berwick-upon-Tweed, the hon. Member for Hammersmith (Mr Slaughter) and my hon. Friend the Member for Stone (Mr Cash), who is so often proved, even after many years, to be right, I prefer the analysis of my hon. Friend the Member for Stone. The Commission has a cavernous maw into which legislation is sucked into a black hole along with our rights, prerogatives and spheres of sovereignty. I am strongly concerned about the consequences for this Government if they continue with their policy of opt-ins, as was observed by the right hon. Member for Berwick-upon-Tweed a few moments ago.

When a country opts in to a sphere of competence of the European Union, it does not opt in merely to a different wording or to some dilute or mild consequence of that kind. It opts in lock, stock and barrel to the hegemony of the European Union institutions, by which I mean the European Court of Justice, the Commission and the rest of it. That might attract complacent smiles on the Opposition Benches—and even on the Government Benches—but just think of what legislative territory is already included. Firearms control—which has not been mentioned so far, but which is covered by a series of European directives—organised crime, VAT, drug trafficking and money laundering are all covered by extensive directives and directly applicable regulations. There is not a Crown court in this country that is not, as we speak, preoccupied with such trials. If we opt in, we are opting in to the jurisdiction of the European Court of Justice and enabling it to examine our procedures in our Crown courts and see whether they comply with the minimum rules that this policy will set down.

[Kate Hoey (Vauxhall) (Lab)]

I have listened to the hon. and learned Gentleman and I agree with everything he has said so far. Does he agree that the most iniquitous thing about all this continuing opting in and moving into an ever-closer European Union for this country is the fact that the British people have never given their permission for that to happen? Does he agree that that is what we should really be arguing for now?

[Mr Cox]

I do agree. The fundamental underlying principle that should exercise all Members of this House when it comes to criminal law powers being assumed by a supranational organisation is that what is or is not criminal, and what is or is not an action that puts an individual citizen of this nation beyond the pale of the criminal law, should be a matter for this House. It is to this House that citizens of this country entrust the moral judgments that underlie decisions about what should be criminalised and what should not. We are directly accountable to that citizenry, whereas the institutions of the European Union are not. That is why I have come to this debate to sound a note of caution and warning. That is also why, having listened to the different expressions of caution that have been so well made by my right hon. Friend the Member for Berwick-upon-Tweed, who chairs the Select Committee on Justice, I prefer the analysis of my hon. Friend the Member for Stone.

There is no doubt but that a vast field is already occupied by the European Union, and if we see a panoply of institutional responsibility and jurisdiction introduced into the criminal law, we will be exposing our procedures, our rules of evidence and our very jury trial itself to challenge in the European Court of Justice as not complying with the minimum rules set down. That might not happen this year or the next, but the European Union thinks in terms not just of one decade, but of decades and decades; it proceeds slowly. That is why, like Cassandra, or like Balaam’s ass, my hon. Friend the Member for Stone so often stands in our way—or indeed, like the angel that prevented Balaam’s ass from going on, he beckons to us and indicates that we would do well to think very carefully before we simply approve policies of this kind without understanding that there is an underlying caution that we should always exercise.