Brexit: Withdrawal Agreement and Political Declaration

Lord Goldsmith Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I do not think that is for me to do, but no doubt my noble friend Lady Hayter will comment on what the noble Lord has said. He knows that I have huge respect for him. I want to touch on the legal issues, I am afraid, as I did when I spoke on 5 December.

The principal point I made then was that the so-called temporary arrangements could not be relied upon to be temporary under the wording of the withdrawal agreement and political declaration. No amount of aspiration that the Northern Ireland backstop would be temporary could achieve that without an actual change to the legally binding language of the withdrawal agreement, and the only way of changing the effect of the legally binding withdrawal agreement was by another legally binding agreement or amendment. Despite the Prime Minister’s pilgrimages to Brussels, no such legally binding agreement, or amendment to the withdrawal agreement, has come about. Further warm words of aspiration will not change the position.

As I said then, noble Lords may be prepared none the less to rely on those expressions of hope and take the risk that in the end it will all be all right. I also said that for myself I did not believe that comfort could be taken from legal arguments—for example, about the best endeavours obligation and the arbitration arrangements. I need not elaborate further on those arguments, which are set out in the speech I made. Nothing has changed, in my view.

There is, I suspect, a new argument to be advanced by the Government that reliance can be placed on Articles 60 or 62 of the Vienna Convention on the Law of Treaties. As to Article 60, under which a treaty could be terminated for “material breach”, precisely the same problem arises from proving a breach of the general good faith obligation, particularly when that obligation is qualified—a point I did not make before—by the following words:

“and in full respect of their respective legal orders”.

Nobody has explained quite what that means, but to me it would mean that, so far as the United Kingdom is concerned, the respective legal order of the United Kingdom is that Parliament’s will must be followed, and in the European Union it is not much different so far as the European Parliament is concerned. That seems to be an additional reason why it would not be possible to say that good faith had not been followed in the negotiations.

As to Article 62, under which a treaty might be abrogated by,

“a fundamental change of circumstances”,

it is clear that the entry into force of the backstop can hardly be described as a fundamental change of circumstances, as it is expressly foreseen and envisaged in the withdrawal agreement. That is not what “fundamental change of circumstances” means. That is very clear.

Today we have seen the letter from the two Presidents—President Juncker and President Tusk—and the letter from the Prime Minister. I do not see them changing the legal situation on the backstop; nor, I see from the Attorney-General’s letter, does he. He says in paragraph 2 that,

“they do not alter the fundamental meanings of its provisions as I advised them to be on 13 November 2018”.

Your Lordships will have seen that very clearly.

The letter from the Presidents does repeat warm words. It also repeats—this is most important—the legally correct statement that if the backstop is triggered it would apply,

“unless and until it is superseded by a subsequent agreement”.

Those are really important words. They mirror precisely what is said in the withdrawal agreement, in particular the final sentence of paragraph 4 of Article 1, and much reliance was placed on that, rightly, by the Attorney-General in the letter that the House has seen. That is the fundamental point. The position is that, unless and until a subsequent agreement takes place, the backstop will continue to exist. It may be that a political agreement can be reached. That is not the point that I am dealing with.

It is clear, of course, that the EU was pressed to give Mrs May something, but this is the best it has produced, and it says more by what it does not say than by what it actually says. Only a new agreement at the end of the discussion on the political declaration will bring the backstop to an end. That is what I wanted to say about the events that have taken place since we last debated this issue.

I want also to mention briefly the other legal topic, which has been touched on in previous speeches to some extent, which is in relation to issues of justice and security. On security and criminal justice, reference has been made already, for example by my noble friend Lord Browne of Ladyton.

But so far as civil justice is concerned—and commercial matters—there is much less. As the House has already been told, there is nothing in the political declaration that calls for co-operation in that field. Nor will it be a solution, in the critically important area of enforcement and recognition of judgments, to rely on the Lugano treaty. I could explain the detail of that but, essentially, there were difficulties in and problems with the original Brussels convention, including the rather charmingly named Italian torpedo—not a form of sandwich, as many may think—it gave rise to. That was fixed, but not in the Lugano treaty.

Finally, I refer to the absence of any real provision in relation to legal services. I declare an interest as a practising lawyer and a member of a firm that practises across boundaries. The arrangements that there are in relation to legal services in future are far from satisfactory.