Withdrawal Agreement: Legal Opinion

Hilary Benn Excerpts

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

[The Attorney General]

I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.

[Hilary Benn (Leeds Central) (Lab)]

Can the Attorney General confirm that in order to get to the point at which the UK might be able to suspend the Northern Ireland protocol, it would have to, first, persuade the arbitration panel to agree with its case and, secondly, accept that any issue of EU law arising from the case that the UK had argued would have to be referred to the Court of Justice of the European Union and that any ruling of the CJEU on that matter would be binding on the panel, the EU and, most importantly for this discussion, the UK?

[The Attorney General]

Of course I can confirm all those things, which are self-evident in the agreement. May I just point out to the right hon. Gentleman that although I am sure it is a clever forensic point, the circumstance in which a point of European Union law would arise in connection with the best endeavours and bad faith clauses is difficult to envisage? The reality is that it is a straightforward question of fact: is the European Union moving with the urgency and pace, to the procedural timetables and according to the procedural steps that this agreement now enforces?

The right hon. Gentleman is an honest politician, and he cannot look these things in the face and say that they mean nothing. These are important amplifications and clarifications of the duty of best endeavours. I quite agree with him, as I very much doubt we would ever get to an arbitral tribunal, because what these duties, new clarifications and amplifications do is set the framework for people’s conduct within the negotiation. It is about the impact on their behaviour and conduct. Very rare is the case in which one would get to an arbitral tribunal. What matters is the framework of obligations and responsibilities, and those have materially tightened on the European Union.