Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Chuka Umunna

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

[The Attorney General]

Yes, I do. Given what is at stake for the people of Northern Ireland and the Republic of Ireland, for the credit and faith of the European Union, which will be on the line, and for our ability to measure its performance against the detailed timetables and procedures that are now in place, I simply do not believe that we will be unable to reach any agreement with them. I repeat: it is perfectly possible to approach this in stages—to agree several agreements. We will be able to agree something over the next two or three years and the first priority, which is set out in this instrument, is the subsequent agreement replacing the backstop.

[Chuka Umunna (Streatham) (Ind)]

My preference would be an arrangement that does not necessitate a backstop. For all the words that the Attorney General has used, is it not the case that none of these things—the joint instrument, the unilateral declaration and the change to the declaration—facilitates an unconditional unilateral withdrawal by the UK from the backstop? More than that, for all the words that he has used, we will still end up paying a divorce bill of more than £50 billion, in part in return for a political declaration that has no legal force whatever. That is the key point.

[The Attorney General]

The hon. Gentleman is not right about that. Under article 184 of the withdrawal agreement, there is a legal duty on the Union and the UK to negotiate a deal that is in line, and according to, the political declaration. He asks, is there any unconditional right to withdraw? With respect, I have answered that question. The only circumstance in which there would be an unconditional right to withdraw is if there were a fundamental change of circumstances pursuant to customary international law.

European Union (Withdrawal) Act

Debate between Geoffrey Cox and Chuka Umunna

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

I will give way to my right hon. Friend the Member for Broxtowe (Anna Soubry), but first I need to make some progress.

Orderly exit from the European Union would always require a withdrawal agreement along these lines. No alternative option now being canvassed in the House would not require the withdrawal agreement and now the backstop. Let us be clear: whatever solution may be fashioned if this motion and deal are defeated, this withdrawal agreement will have to return in much the same form and with much the same content. Therefore, there is no serious or credible objection that has been advanced by any party to the withdrawal agreement.

It was said last week by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) that we should have negotiated a full customs union with a say within the political declaration and then there would have been no need for a backstop, because the agreement could then have been concluded within the transition period. However, he knows, and it is clear, that the European Union is unwilling to and regards itself as bound by its own law not to enter into detailed negotiations on the permanent relationship treaties. The EU was never going to do it, and its own negotiating guidelines said it would not, so there was always going to be this withdrawal agreement, a political declaration setting out a framework and months, if not years, thereafter of detailed negotiation on any final resting place that any political declaration might have.

[Chuka Umunna (Streatham) (Lab)]

Will the Attorney General give way?

[The Attorney General]

I will come to the hon. Gentleman in time. Let us examine the point. The question is what is the basis for the objection to the withdrawal agreement?

--- Later in debate ---

[Chuka Umunna]

The Attorney General talks about the danger of setting unrealistic expectations, but it was the Prime Minister sitting next to him who promised in her Lancaster House speech that we would have agreed the future relationship before exit day. Secondly, he makes great play of this implementation period, but it is of no use in some respects if we do not know to what we are transitioning. He knows that we will have a different European Parliament, a different European Council and a different European President, and two other presidents, who will all have changed by the time that the future relationship is due to be settled.

[The Attorney General]

We must start from where we are now. It is easy to say, “We shouldn’t have started from here.” The political declaration sets out clear parameters about the future treaty. First, written into the DNA of the political declaration are two cardinal principles—

[Chuka Umunna]

But it is not a legal document.

[The Attorney General]

It is not a legal document, but no political declaration would ever be a legal document, by definition. Under EU law, we cannot have a finally negotiated text with all the legal detail.

Let me come to the two clear conditions in the political declaration—[Interruption.] I will complete in a few minutes. First, no free movement—