Withdrawal Agreement: Legal Position

Joanna Cherry Excerpts

Monday 3rd December 2018 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

The binding motion passed by this House on 13 November ordered the production of any legal advice in full, including that provided by the Attorney General, and with a particular focus on the Northern Ireland backstop—not a commentary, but the legal advice in full. The House did not divide. The Government effectively conceded that these were exceptional circumstances and that the normal, very important convention would not apply, so that ship has sailed.

The Attorney General and I are both senior lawyers in our own jurisdictions, so I am sure that he will not want to insult my intelligence or that of the House by pretending that this Command Paper reflects in any way the nuanced advice that he will have given to the Cabinet, focused on particular questions such as those that we saw leaked over the weekend. For example, he just said that it is not his belief that we will be trapped in the backstop permanently, but this House, which has to take the final decision—not the Cabinet—is not interested in his belief; it is interested in his legal opinion. Can he confirm, as a matter of law, that there is nothing to prevent the backstop from becoming the permanent UK-EU relationship in the event that the two sides cannot agree a future economic relationship? That is a matter of law.

Will the Attorney General acknowledge something else? He is a democrat, the Government are democrats; they have gone on incessantly about the will of the people for the last two years and profess to believe in parliamentary sovereignty. We sitting in this House are the representatives of the people, and we voted to see his advice in full, not his commentary, so will he undertake to produce that advice—the sort of nuggets that were leaked over the weekend, but in full—before the rise of the House today, and before tomorrow’s debate, or is he prepared to run the risk of being found in contempt of Parliament merely to protect the Conservative and Unionist party against further internal strife?

[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.