EU Withdrawal Agreement: Legal Advice

Debate between Keir Starmer and Lord Dodds of Duncairn

Tuesday 13th November 2018 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I beg to move,

That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

I will go into the details of the argument in just a moment, but may I first attempt to set out the context for today’s debate? Last December, the Government signed the joint report—the phase 1 agreement. It contained a number of important points, including, of course, in relation to Northern Ireland. I remind the House that the phase 1 agreement committed us, first, to maintaining the north-south co-operation provided by the Good Friday agreement; and, secondly, to avoiding a hard border, including any physical infrastructure or related checks and controls in Northern Ireland. Those, of course, are commitments that will apply “in all circumstances”. The idea is for a legally binding backstop to kick in

“In the absence of agreed solutions”.

That was the commitment made, and I know the Government are solemnly committed to it.

[Nigel Dodds (Belfast North) (DUP)]

Does the right hon. and learned Gentleman agree that that report also made a commitment, in paragraph 50, that there would be no differences between Northern Ireland and the rest of the United Kingdom, unless it was with the agreement of the devolved legislature in Northern Ireland?

[Keir Starmer]

It did. A number of other important commitments were made in that agreement, but I am focusing for the moment on the two that relate to the Northern Ireland border. Since then—and it has been 11 months—a number of options have been mooted to meet that commitment. First, the EU proposed a Northern Ireland- specific backstop earlier in the year. The Prime Minister was right to point out the threats that that posed to the UK. Then, the EU proposed a UK-wide backstop, certainly in so far as a customs arrangement or union is concerned, but that runs into the problem that the EU wants an insurance measure that applies until something equally robust replaces it, whereas the UK wants a provision for unilateral withdrawal—and so that got stuck. A third option has been proposed, which is a UK-wide backstop of some sort, with unilateral withdrawal but with a Northern Ireland-specific backstop as a backstop to the backstop. After 11 months, this is unresolved.

I am not going to stand here and pretend that any of this is easy, because it is not—these are complicated negotiations and very serious commitments—but I am sure I am not the only one in this House who feels as though we have lived and re-lived the same week over and over again in the past few months. We begin the week being told, “There is going to be a deal. Cabinet meetings are scheduled. Dates are due—votes are being held in Parliament; there will be emergency summits in Brussels.” By the end of the week we are told, “Next week is decision time.” We have been going around that circuit for some time, and this can go on for only so long. The important point is this: if a deal is reached, it is proposed that the backstop will be legally binding as part of the withdrawal agreement. So it is in the legally binding part of the agreement, not the political declaration. That is a very important provision. Under section 13 of the European Union (Withdrawal) Act 2018, this House will of course be asked to approve that withdrawal agreement, or not approve it, so there is a special statutory process for this House that everybody in this House is well aware of.

On 17 October, it was reported that the Attorney General had been asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. I pause here to identify and emphasise what it is that the Attorney General has been asked to do: to provide a full assessment of the legal ramifications of the backstop. That is important for later, when I shall get into questions of privilege and non-disclosure.