Northern Ireland Backstop: Conditional Interpretative Declaration

Kwasi Kwarteng Excerpts

Thursday 21st February 2019 Commons Chamber

[Sir William Cash]

I am deeply grateful to the hon. Lady because she expresses exactly my line of argument. I hope that it is understood that this is not a matter of being obstructive for its own sake. It is incredibly important that the House is not bounced, or confronted with smoke and mirrors or something Members do not completely understand, but then they all go off and vote and afterwards someone says, “Actually, that doesn’t stack up.” I know that my right hon. Friend the Member for Gainsborough entirely agrees with me on that, and I know the Minister does, too—

[The Parliamentary Under-Secretary of State for Exiting the European Union (Kwasi Kwarteng)]

indicated assent.

[Sir William Cash]

I see him nodding his head, for which I am grateful. It really is important. We are not talking about something like a free trade agreement, like the one with Canada—the CETA arrangements—at which my Committee has also been looking very closely. In fact, it is a matter of profound and fundamental constitutional significance, and I am deeply concerned that the EU has taken an intransigent position.

We know that Martin Selmayr is reputed to have said that the price the United Kingdom will have to pay for the way in which it has carried on—I am paraphrasing—is Northern Ireland. We know that there are powerful forces in the Republic who want a united Ireland, and there are also those who believe that the whole backstop argument has been engineered to lead to a border poll and ultimately a united Ireland. There are some very clever lawyers at work in all this. It is our job in the House, with such resources as are available to us, to try to penetrate the fog and make it crystal clear that no solution that would have the effect of undermining the constitutional status of Northern Ireland within the United Kingdom could possibly be put forward.

I do not think that I need to say much more. Mine is a profound concern, but I am sure that it will be understood in Downing Street and in the Attorney General’s own mind. Let me simply say that I am extremely grateful to my right hon. Friend the Member for Gainsborough for the way in which he has set out what I have understood him to be seeking to achieve. The danger would arise if we ended up taking a route that looked plausibly good and then turned out to be not merely a bear trap but a disaster.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Kwasi Kwarteng)]

In my nine years in the House, I have not experienced such an extensive Adjournment debate, and I am very grateful for it. I congratulate my right hon. Friend the Member for Gainsborough (Sir Edward Leigh) on securing it.

The issue of the backstop reflects our commitment to avoiding a hard border on the island of Ireland. I know from history that my right hon. Friend has experience of trade matters. He was an Under-Secretary of State, as I am today—he was an Under-Secretary in the Department of Trade and Industry—and he speaks as a lawyer, so he has considerable expertise in many of these issues. I should also point out that he has engaged with my right hon. Friend the Prime Minister on precisely this issue of the conditional interpretative declaration. I shall say a few words about that later in my speech.

I am grateful to my right hon. Friend, as are the Government, for sharing his thoughts on a mechanism that was not previously known to me. I read his letter with due consideration, and I have done my own research in addition to that with my team in the Department. We have our own views on the strength and plausibility of this mechanism.

As the House will recall, Members sent a clear signal to the Government, and to the country, that a deal could be supported, but that that support was conditional. In the only positive expression of its desired means to achieve our exit from the EU, the House asserted that to secure support for the withdrawal agreement, legally binding changes to the backstop would be required. I must stress that the Government are entirely convinced that that is the question that we need to address, and on which we need to make some measure of progress.

My right hon. Friend highlighted one possible means by which a change to the backstop could be secured. We are still committed to legally binding changes that would deal with the concerns about the backstop that have been expressed by Members on both sides of the House. As for the substance of the changes that we are seeking, we are still looking at various means: we have not necessarily taken one route or another.

I note that the Opposition Benches are entirely empty, but, as a courtesy to the House, I will address those empty Benches.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. Just as a matter of fact, I sincerely hope that the Minister will be addressing the Chair and not any Benches in particular; and just as a tip, if he does address the Chair, he will find that the microphone picks up his voice better because of the way in which it is adjusted.

[Kwasi Kwarteng]

I thank you very much for those tips, Madam Deputy Speaker. I was just making a rather flippant observation; I do not think I have ever seen entirely empty Opposition Benches.

Clearly the Government and the Prime Minister have set out three possible routes—three ways in which the backstop can be addressed. Members will know those three options, but for the sake of the record we should recapitulate. The first was whether the backstop could be replaced with alternative arrangements, and those arrangements are expressed exactly in the political declaration. They are arrangements that will avoid a hard border between Northern Ireland and Ireland, and this process has been constructively led by my right hon. Friend the Secretary of State and he has been engaging with MPs across the House on that issue.

My right hon. Friend the Secretary of State has also discussed alternative arrangements with the ongoing alternative arrangements working group in Brussels and with Mr Barnier. The Commission has changed its language over the last few weeks and is beginning to engage seriously with the proposals we have suggested. Although the Commission has expressed some concern about the viability of alternative arrangements, I would suggest that it is more flexible and open to these alternative arrangements than has been the case hitherto.

[Sir William Cash]

Will the Minister also accept that, as he has made clear, the only basis on which this entire analysis and investigation and possible wording could be effective in the Government’s mind would be if it were legally binding? However, it is manifestly obvious that the political declaration is not legally binding and therefore to conduct the alternative arrangements on the basis of a political declaration which is not legally binding simply does not wash.

[Kwasi Kwarteng]

My hon. Friend with his customary acuity stresses and reinforces what I and the Government have already said: we are seeking legally binding changes to the backstop.

The Government have also looked at the issue of a time limit to the existing backstop, and this is where the suggestion of my right hon. Friend the Member for Gainsborough plays its part. His suggestion is that conditional interpretative declarations could be employed as a mechanism for interpreting what exactly is meant by “temporary” in relation to the backstop and defining this in such a way that results in the fact that the UK would not be bound indefinitely to the backstop. It is an elegant solution on first reading, but an issue has arisen as to exactly how binding such a declaration would be. My guidance has been that any changes would still have to be jointly agreed by both parties, and that is a key aspect we must consider. My right hon. Friend has pointed the way on this: in the withdrawal agreement, which I have studied carefully, the Northern Ireland protocol, which is about 185 pages long, sets out in clear, some might even say stark, terms the role of the joint committee and the fact that any end of the backstop would have to be mutually agreed. It is unclear to me and a number of people who have looked at this in the interests of the Government whether such a conditional interpretative declaration would allow the UK unilaterally to impose an end date for the protocol. My right hon. Friend in his comprehensive and excellent speech also suggested that such a declaration could not contravene the withdrawal agreement itself.

[Sir William Cash]

The other point to throw into this equation is the question of whether the European Court of Justice would, at the end of this process, be able to adjudicate on the outcome, because it would be manifestly in the minds of the EU that this matter engaged European law.

[Kwasi Kwarteng]

As my hon. Friend will know, the status of the backstop will be subject, I suppose, to the scrutiny of the joint committee. He is suggesting that the joint committee will ultimately be somehow under the jurisdiction of the European Court. This is not actually—

--- Later in debate ---

Motion made, and Question proposed, That this House do now adjourn.—(Craig Whittaker.)

[Kwasi Kwarteng]

My hon. Friend has raised an important point about the role of the joint committee and its supervision of the backstop, should we enter into one. This is precisely what we are negotiating: our ability to get a codicil or some form of change to the withdrawal agreement. That is precisely what is being debated, and we have to await the outcome of those negotiations.

I must stress that it is not entirely clear, despite my right hon. Friend the Member for Gainsborough’s excellent efforts to reach a solution in this regard, that a conditional interpretative declaration would have the effect that he seeks in allowing the United Kingdom unilaterally to put an end to the backstop. This is an open question, and the mere fact that it is debatable does not provide the certainty and finality that we would seek in making the changes to the backstop that he would like to see.

Let me conclude by thanking my right hon. Friend the Member for Gainsborough again for initiating and securing this debate. This is my first Adjournment debate, and I am delighted to have been so ably accompanied by two outstanding Members of this House who have graced our presence and contributed to debates, particularly on Europe, over many years. Like them, I was a Brexiteer, and I would like to reinforce the remarks that my right hon. Friend the Member for Gainsborough made about the need to reach finality on this. It is a remarkable testament to my hon. Friend the Member for Stone (Sir William Cash) and my right hon. Friend the Member for Gainsborough that, in the course of their parliamentary careers, they will have seen us leave the EU. Perhaps they always believed that they would see this day, but this is something that should be noted nevertheless. It is extraordinary that we are now in the end phase of our membership of the EU, and that should not be forgotten.

The Government obviously continue to look at ideas as we seek to achieve changes to the backstop. My right hon. Friend has provided one possible vehicle for doing that, and I only alert him to some of the circumspect views that we have about this particular mechanism. This is an ongoing debate, and I would like to thank him sincerely for his contribution. He always provides useful detail and good sense in these debates, and I look forward to engaging with him further as we continue this discussion about the nature of Brexit and the future of our country after we leave the EU.

Question put and agreed to.