Brexit: Withdrawal Agreement and Political Declaration

Lord Thomas of Gresford Excerpts

Thursday 6th December 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the noble Baroness, Lady Crawley, really ought not to have tempted me by talking about backstop as a rugby term. My mind went back to a muddy afternoon in Blaenau Ffestiniog when I was taken out of the pack, warm and comfortable as it was, and told to play at full-back, something I had never done before. Somebody kicked the ball over my head. I turned round to see who would deal with it and thought, “See, Ma? It’s me. I’m the backstop”. A sense of panic fell in as I could hear the thundering footsteps behind me. I was flattened, although I got the ball.

I feel for the Prime Minister as the ball goes over her head. She has been flattened many times in Brussels, in Salzburg and elsewhere. She has got up, plastered in mud, still holding on to the ball. This time, the heavy footsteps and the hard breathing behind her are not from the Opposition but from half of her own team, led by Boris Johnson, that well-known spear tackler of 12 year-olds, and the formidable Ulster pack. They are determined to prise the ball away from her. When she got up this time, there was a loud hissing sound as the ball began to deflate.

From the bench, she brought on Boomer Cox, as we affectionately called him at the Bar. He put up a solid political defence, as you would expect, but yesterday we saw what he really thought in his advice of 13 November. I agreed with the noble and learned Lord, Lord Goldsmith, yesterday—a rather unusual thing—when he said that that advice was well written and spot-on.

The withdrawal agreement does more than commit the United Kingdom to withdraw from the EU; it defines our relationship with the EU for the foreseeable future. Nobody realistically thinks that we can come to a final agreement with the EU by 2020. In fashioning a backstop, Mrs May rejected the EU’s suggestion that Northern Ireland should have special status. In order to placate the DUP, representing a minority view in Northern Ireland, she proposed that the whole of the United Kingdom should be in a special customs territory. It is no surprise that the EU negotiators seized that suggestion with both hands. This means frictionless trade will be maintained as much between Dover and Calais as between the north and south of Ireland. We remain in the special customs territory until that mystical overall agreement has been fashioned. However, one side or the other could notify the joint committee set up under the agreement that this arrangement is no longer necessary to protect the 1998 Good Friday agreement in all its dimensions. If there is a dispute, a five-man arbitration panel will decide the issue, taking its interpretation of Union law from the Court of Justice of the European Union.

On Monday the Attorney-General argued in his Statement that the arbitration panel would consider, for instance, whether either party was using its “best endeavours” or acting “in good faith”. However, in his written advice to the Prime Minister, he came to the nub of the problem: what if both parties were acting in good faith in their own legitimate interests? That is a distinct possibility. When his Statement was read in this House on Monday by the noble and learned Lord, Lord Keen, I asked, as to whether the protocol is still necessary for the 1998 agreement:

“Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine ... ? If that arbitration panel says that it is still necessary … we remain in the backstop. We remain in the single customs territory”.—[Official Report, 3/12/18; col. 884.]


In paragraph 27 of his written advice to the Prime Minister, the Attorney-General went further than I had, saying that,

“whichever party attempted to submit a notification, it is extremely difficult to see how a five member arbitral panel made up of lawyers who were independent of the parties would be prepared to make a judgment as political as whether the Protocol is no longer necessary”.

The panel would refuse to come to any conclusion.

Scenarios are in fashion. Suppose someone invents a new technology and claims that it creates all the necessary customs and regulatory checks at the Irish border. The United Kingdom Government develop it, manufacture it and put it in place at the 300 or so crossing points between the north and south of Ireland. Then the United Kingdom notifies the joint committee that the single customs territory is no longer necessary. The European Union would naturally turn to Ireland and ask, “Is this okay with you?” Ireland might say, “No, it doesn’t do the job it’s hyped up to do. All this new technology is untested; we don’t know if it will work. You’ll risk starting up the Troubles again”, so there is a dispute. Both sides are acting in good faith, but the dispute is submitted to the arbitration panel.

Consider the implications. The five lawyers then decide a question of huge and costly practical significance, economically and—importantly—with an impact on security in Northern Ireland. The Attorney-General, in his advice to the Prime Minister, thinks they would decline the task, and I think he is right. Blow the whistle, ref. The game is over for this withdrawal agreement. It is time for the hot bath, a few pints in the bar and maybe a sing-song; perhaps:

“Drake he’s in his hammock an’ a thousand miles away,


(Capten, art tha sleepin’ there below?)”.

The Brexit buccaneers are a full 400 years too late.