Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Davies of Stamford Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I have had the opportunity to study the earlier and most recent legal opinions of the Attorney-General. I agree with him that as a matter of law there is a risk. But I was a mathematician before I became a lawyer. One has to find out the size of the risk. Every one of us who crossed the street today to come here had to take a risk, did we not? I came yesterday by aeroplane, which also has a risk. The question is: what is the risk? A good deal of the discussion that has just taken place is about what happens in the event of extremes, but the most important way to annihilate the risk is by reaching an agreement that supersedes the protocol altogether. If we want to see how probable an agreement is, we have only to listen to Mr Johnson, who said: “They are keen to sell us their prosecco”. The European Union is as keen to have a free trade agreement with us as we are to have one with it. In fact, its trade is greater towards us than our trade is to the EU. Therefore, the chances are high, to be judged on the facts as they are now, that there will be an agreement to supersede the protocol. That is what one has to measure. So far as I am concerned, the risk is negligible—a very unlikely event. I would feel sorry if the future of our United Kingdom, in this connection, were determined by an appreciation of a so-called risk that is practically negligible.

[Lord Davies of Stamford (Lab)]

Just to deal with “egregious” first, surely the word derives from the Latin “e grege”—

[Baroness Goldie (Con)]

Order. May the Minister respond?

[Lord Keen of Elie]

I will welcome the noble Lord’s comments. His reference to Latin will no doubt enhance this debate. However, for the moment, I entirely concur with the observations of the noble and learned Lord, Lord Mackay of Clashfern. It would be foolish in the extreme to make an important—indeed, significant—political decision on the basis of a risk that can genuinely be regarded as negligible.

[Lord Davies of Stamford]

My Lords, I apologise for my slip. The word “egregious” derives from the Latin “e grege”—outside the flock; in other words, it means abnormal, out of the ordinary. “Shocking” is the wrong translation.

The elaborate piece of theatre that the Government staged last night in Strasbourg and the opinion of the Attorney-General have been designed to ensure that we do not stay in the customs union. As the Minister himself acknowledged, staying in a customs union would be greatly in the national interest. The Government’s policy in this matter is 180 degrees in the wrong direction. Industry and commerce are crying out for the opportunity to stay in the customs union. If we did find that opportunity, I hope we would grasp it. It is much more likely to come to us not from bad faith on the part of the Commission or the Irish but simply because the whole idea of establishing a frontier that is not a frontier proves to be hocus-pocus, as my noble friend Lord Bassam has shown. No such technology is even under study at present. Anyone who knows anything about venture capital knows that the chance of a blue-sky idea becoming viable and generating money is, at best, one in 20.