Legal Advice: Prorogation

Debate between Geoffrey Cox and Iain Duncan Smith

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

If the right hon. Member for Delyn (David Hanson) is so confident that his electorate will consider that his moral right to sit here is so strong, why does he not submit it to them now? All we need—I offer this to the Labour Front Bench—is a one-line Bill, which we could put through with Mr Speaker’s help, to fix the date of a general election by a simple majority, and we could have the election. Why does he not tell his Front Bench to put his confidence in his constituents to the test?

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I wonder if my right hon. and learned Friend, having read the full summary of yesterday’s judgment by the Supreme Court, was also struck by something that seems to be missing within its methodology. When it stood up, it said, for the right of Parliament to hold any Executive to account, at no point did it reference that one of the ways of avoiding or dismissing a Prorogation would have been to pass a vote of no confidence in the Government or to vote for a general election. Does he agree that that would have been a sure-fire way for the Opposition parties to secure an end to any Prorogation and an immediate change of Government, if they so wished, but that they were frightened?

[The Attorney General]

I entirely agree with my right hon. Friend. In our constitution, when a Government can no longer govern because Parliament has withdrawn its assent, the moral and constitutional thing to do is to have the courage of your convictions, which this spineless gang on the Opposition Front Bench do not, and to table a motion of no confidence, but they have not got the guts to table that motion of no confidence because most of them do not want their own leader in power.

Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Iain Duncan Smith

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

[The Attorney General]

The hon. Gentleman asks me about my opinion. He knows that my opinion is that there is no ultimate unilateral right out of this arrangement. The risk of that continues, but the question is whether it is a likelihood, politically. One thing that we did not hear from him is what the Labour party’s position is on the backstop. Does they accept the backstop? Do they think it is a good thing? If they think it is a good thing, why on earth are they criticising it? Or is this just the usual political opportunism that one expects to hear from the Front Bench of the Labour party?

The hon. Gentleman says to me that there is nothing new in this agreement, but that is not so, and some of the authorities that he has quoted are saying that this morning. There are material new obligations—for example, in relation to alternative arrangements. There is now a heavy emphasis upon a swift and expedited track to negotiate them, and it would be unconscionable if, having made that emphasis and having said that time was of the essence, the European Union simply refused to consider or adopt reasonable proposals relating to alternative arrangements. That is new. What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. This makes significant reductions in that risk.

I say to the hon. Gentleman that it would be a good thing if we could hear from the Labour party just occasionally not only political shenanigans but some sincere engagement with the real issues that this withdrawal agreement now raises. The question now is: do we assume our responsibilities as a House and allow not only this country—yearning as it is for us to move on—but the entire continent of Europe to move on? To do that, the time has come now to vote for this deal.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I welcome my right hon. and learned Friend to his place. He has shown absolutely that he is what he should be: an independent adviser to the Government. I congratulate him on that, because that is exactly what he should be. Given the clarity of his advice, I want to ask him a particular question. As he will know, I and others have spent some time looking at and working on alternative arrangements. I would like to clarify exactly what force he thinks those would have. As he said just now, there would be an obligation for the European Union to “consider or adopt” such proposals if they were made in a reasonable way. How does that square with his paragraph 16, in which he says

“it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for such a breach under the Withdrawal Agreement”?

[The Attorney General]

My right hon. Friend has got paragraph 16 wrong, if I may respectfully say so. What it says was that I advised in the past that that was so. What I now consider, at paragraph 17, is:

“that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk”

that we would be held involuntarily and by the bad faith. Why? Because these new provisions make it easier to facilitate an effective claim to the arbitrator that that conduct is being exhibited. Those are cumulative. If one looks at the agreement as a whole, one sees that the obligations on the Union are to treat with urgency the negotiation of alternative arrangements. There is a new obligation that has not existed before in any document that the Union has agreed to, which is that it must aim to do this within 12 months of our withdrawal. That is an important obligation, because it makes time of the essence. If that deadline is passed, as in any legal jurisprudence on such matters relating in a domestic context to breach of contract, for example, that means that the parties must demonstrate that they are intensifying their efforts. If they do not, they could be in breach of their best endeavours obligation.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Iain Duncan Smith

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I have the greatest respect for the hon. and learned Lady. She has put her case rationally and reasonably, and I will deal with her points one by one. She asked whether there was anything to prevent the protocol from becoming permanent in the event of no agreement. As a matter of international law, no there is not—it would endure indefinitely, pending a future agreement being arranged—but that does not exhaust all the matters of law. As a matter of EU law, it would, in those circumstances, be highly vulnerable to legal challenge. It is widely accepted, including by the EU Commission and taskforce 50, that article 50 is not a sound legal foundation for permanent arrangements between states. If negotiations irretrievably broke down, the protocol would de facto become permanent and therefore seriously challengeable in the Court of Justice of the European Union for being invalid. That legal uncertainty by itself is sufficient to promote to the EU the need to do a deal with us. It would be profoundly detrimental to thousands—indeed millions—of traders throughout the single market. That is one factor that convinces me that this is a risk worth taking.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I start by welcoming without reservation my right hon. and learned Friend to his position. He knows that I have believed for many years that he should have filled this post.

I welcome my right hon. and learned Friend’s statement. Page 6 of his document refers to what is defined as “good faith”. He mentioned the International Court of Justice, so I hope he will not mind if I quote from one of its judgments referenced in footnote 8. He talked about how long the backstop should last and what defined “good faith”. The judgment states that

“the failure of the Parties to reach agreement, 16 years after the conclusion of”—

earlier negotiations—

“does not itself establish that either Party has breached its obligation to negotiate in good faith.”

As my right hon. and learned Friend knows, his right hon. Friends on the Front Bench one by one have used good faith as their defence for being locked into this problem of the backstop and as their explanation of how we will get out. As a matter of law, is good faith required for best endeavours?

[The Attorney General]

The duty of good faith and to use best endeavours is a legally enforceable duty. There is no doubt that it is difficult to prove—[Interruption]—as I hear from a sedentary position, but that is not to say that it has not been proven. The case reports of the International Court of Justice, as well as arbitral tribunals throughout the world, have recorded decisions where tribunals have found breaches of good faith duties. There would need to be clear and convincing evidence that the breakdown of communication was due to bad faith—I fully accept that—but if the EU refused to engage with us, strung out negotiations in a thoroughly unreasonable way or failed to observe reasonable time limits, those would be hallmarks of a possible case of breach of good faith. It is a meaningful legal obligation.

I remind the House that we are dealing here with the United Kingdom on one hand and the European Union on the other. Their reputations in international forums, and their reputations as a question of international law, are at stake. If you put your name to a solemn legal obligation to negotiate something in good faith within a certain time limit, it is a very serious obligation of which to acquit yourself: it cannot just be played fast and loose with.