2018 12 – Parliamentary Notes 2 – Legal Position

Parliament Notes

Dick Barry

Withdrawal Agreement: Legal Position

03 December 2018

The Attorney General (Mr Geoffrey Cox) It is very good of the Prime Minister to warm up for me today. With permission, Mr Speaker, I wish to make a statement to the House. I should make clear the context in which I consider that I am to do so today; my statement is intended to inform the debate that is shortly to commence on the motion to approve the withdrawal agreement and the political declaration on the future relationship concluded with the European Union by my right hon. Friend the Prime Minister.

It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration of the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government. Therefore, my statement today is complemented by a detailed legal commentary, provided for the purpose of the debate and published this morning, that analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them.

There is, of course, no want of other sources of helpful commentary available to the House, and in making this statement in these unusual circumstances and in answering any questions that hon. Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially, and to place such legal expertise as I have at its disposal. The historical precedents strongly support that view. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe that it can or should pass under any misapprehension whatsoever as to the legal matters on which that judgment should be based.

It is important to recall that the matters of law affecting the withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed. In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney General—certainly not this one—can instantly possess the answers to all of the pertinent questions that the skill and ingenuity of hon. Members may devise.

However, I am aware that there are certain parts of the agreement the meaning of which attracts the close and keen interest of the House, and it is to some of these that I now turn: first, the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020 unless, pursuant to article 132 of the agreement, both the UK and the EU agreed to a ​single extension for a fixed time of up to one or two years. By article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast or Good Friday agreement. The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom and the associated amendment to the Irish constitution to remove its previous territorial claim remain in place.

Once in force, by article 2.1 of the protocol, the parties would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes it. There is a separate but closely related duty on the parties under article 184 to negotiate expeditiously and use best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by article 1.4 of the protocol, it is expressly agreed not to be intended to establish a permanent relationship but to be temporary. That language reflects the fact that article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.

If either party did not comply with its obligations of good faith after the implementation period, it would be open to them to bring a complaint under the dispute settlement provisions set out in articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of that obligation. If the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions.

There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down. How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.

Under the protocol, the UK would form with the EU a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the EU customs code. Those rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union.

By those means, the need for any hard border would be avoided, and goods originating in Northern Ireland would be entitled to free circulation throughout the EU’s single market. In all other respects of its regulatory ​regime, Northern Ireland would follow the applicable UK legislation, save where those were devolved. By article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor—whether situated in the Republic of Ireland or elsewhere in the single market—would not.

I turn to the role of Union law and the CJEU under the withdrawal agreement and within the dispute settlement provisions. It is important to place these provisions in the context of the objectives of the agreement, which is the orderly exit of the UK from the EU for our citizens and businesses. To that end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects, where it is necessary or desirable for legal certainty to do so.

Although we will legally leave the EU and cease to be a member state on 29 March 2019, part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming. During that implementation period, so as to give the time, predictability and continuity that is needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before.

But on the conclusion of that period, on 31 December 2020, that will come to an end. Thereafter, Union law and the Court of Justice will possess a relevance in the United Kingdom only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states and of EU citizens in the United Kingdom are created and defined by Union law. If they are to be preserved in equal measure and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of those particular groups of people must continue to be defined by reference to that law. Those rights are provided for in part 2 of the agreement.

Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the United Kingdom will look to the UK independent monitoring authority set up under article 159 and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the CJEU where the determination of such a question is necessary to resolve a dispute.

Instead, pursuant to article 158, the UK courts, for a fixed period of eight years only, may refer—I repeat, may refer—to the CJEU a question of interpretation of part 2 of the agreement in the interests of achieving consistency in the enforcement of the rights of citizens while the new system is established. After that time, our courts will, pursuant to article 4.5, continue to interpret concepts and provisions of Union law in the areas in which the agreement applies it as they always have, and to have due regard to relevant post-implementation case law where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.​

Part 3 deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period, and to which Union law and the role of institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court an alleged breach of an obligation incurred prior to the end of the implementation period.

Part 5 deals with our agreed financial obligations. It provides, under article 160, for Union law and the jurisdiction of the Court to apply beyond the implementation period only for the time and purpose of closing out the UK’s financial obligations and entitlements incurred under Union law, again prior to the end of that period.

All of these are inherently time-limited functions, and once they are at an end the Court will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom. A dispute between the EU and the UK about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel in which the Court has no automatic role, but if the panel needs to and a question of interpretation of Union law is relevant to the dispute, it can ask the Court to resolve that question. It is then for the panel to apply that interpretation to the facts of the dispute, and thus decide how the dispute should be resolved.

The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. The gradual loosening and removal of the legal ties that have bound us to the European Union for 45 years will take time to work out. This agreement and the European Union (Withdrawal) Act 2018, already passed by the House, allow for the necessary time and legal means for that process to unfold in a peaceful and orderly way.

I am at the disposal of the House to answer questions, in so far as I can, on these and other legal matters. I commend this statement to the House.

Nick Thomas-Symonds (Torfaen) (Lab) I am of course grateful to the Attorney General for his statement, and for advance sight of it, but all Members who are asking questions are at a major disadvantage, because they have not read the legal advice on which the statement is based. That is totally unacceptable when aspects of the Attorney General’s advice have been selectively leaked to the press over the weekend. For example, it has been reported that in a letter to Cabinet Ministers last month, the Attorney General said, in respect of the backstop arrangement, “The protocol would endure indefinitely” if trade talks broke down. In his statement, the Attorney General talked about political factors that might, in his view, make the backstop temporary, but in reality, that ​is not the legal position. Perhaps he can confirm that the legal position is as set out in the letter—that the protocol will “endure indefinitely” if the trade talks break down.

On 13 November in this House, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer)—the shadow Brexit Secretary—and I were very clear on what was being sought: the final, full advice provided by the Attorney General to the Cabinet on any completed withdrawal agreement should be made available to all MPs in good time for the vote on the deal. Offers short of that, including of the Attorney General’s statement today and of a summary made by the Government, were rejected, and the House unanimously passed a motion to that effect. [Interruption.] “Playing games,” shouts the Chancellor. On 13 November, the Conservative party could not get one of its MPs to vote against the motion—not one.

The document that has been produced is, in the Attorney General’s own words, a legal commentary, produced with his oversight and approval. It is not the final legal advice to the Cabinet. Frankly, the explainer produced alongside the withdrawal agreement was longer and more detailed than this document. Is not the reality that the Government do not want MPs to see the full legal advice, for fear of the political consequences?

There is no point whatever in trying to hide behind the Law Officers’ convention. The “Ministerial Code” and “Erskine May” are very clear: Ministers have the discretion, under that convention, to make advice available in exceptional circumstances. What circumstances could be more exceptional than these? The economic, political and constitutional integrity of our country is at stake. I quote paragraph 82 of the legal commentary: “The Agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law…to withdraw from the Agreement unilaterally.”

A straight question to the Attorney General: can be direct me or the House to any other international treaty to which the UK is party that it has no unilateral right to terminate? Can he even name one?

Furthermore, articles 1.4 and 2.1 of the backstop protocol are clear that its provisions “shall apply unless…they are superseded, in whole or in part, by a subsequent agreement.”

[Interruption.] No, the “in whole or in part” bit was not commented on in the statement, actually. Put simply, that means that parts of the backstop could become permanent, even in the event of a trade deal being agreed. I ask the Attorney General directly: what is his view on which parts of the backstop arrangement in this protocol are most likely to become permanent?

May I raise with the Attorney General the issue of the impact on the Good Friday agreement? Page 306 of the withdrawal agreement refers to the need for the protocol to be implemented so as to

“maintain the necessary conditions for continued North-South cooperation,” including the conditions for possible new arrangements in accordance with the 1998 agreement. So can the Attorney General tell the House, in his view: first, which new arrangements he believes would be in accordance with the 1998 Good Friday agreement; and, secondly, which arrangements he believes would not be in accordance with it?​

In the first instance it will be for you, Mr Speaker, to rule on whether there has been an arguable case of contempt for what we on the Opposition Benches believe to be a failure to comply with the motion of 13 November. For the sake of our economy, our jobs and our futures, all possible information should be made available to Members of this House. The Government should do the right thing and make the full advice available. With so much at stake for all our constituents and with eight days to go before the vote on the deal, this House and this country deserve better from this Government.

The Attorney General First, let me say to the hon. Gentleman that he has far better than any advice I may or may not have given to the Government: he can ask me. All he has to do is ask and he will receive, because I will give him a frank answer. [Interruption.] It is very rare for the Attorney General to appear to answer questions in the House on matters of law. I am doing so, so that Opposition and Government Members can have a full, frank and thorough opportunity to ask me, as the Government’s chief legal adviser and as an adviser to the House on constitutional and legal matters, what our legal position is. I assure the House that if questions are asked, I shall answer them candidly.

The hon. Gentleman told me that I had not said anything about the subsistence of the Northern Ireland protocol. Let me make no bones about the Northern Ireland protocol: it will subsist. We are indefinitely committed to it if it comes into force. There is no point in my trying or the Government trying to disguise that fact. The truth, however, is this: what is the political imperative of either entering into it or not entering into it? That is a calculated equation of risk that each Member of this House is going to have to weigh up, and do so against different alternatives.

The hon. Gentleman also mentioned that I should answer whether other treaties are permanent. Hundreds of treaties throughout the world are permanent—treaties on borders, treaties on rivers; the Vienna convention has entire sections on permanent treaties. If the hon. Gentleman wants me to enumerate some, I will write to him with them—I am afraid I do not have them to hand. There is an entire section of the Vienna convention on permanent treaties. The question whether we have a right to terminate under the convention is a matter of construction. Let me make it plain: there is no such right to terminate if the Northern Ireland protocol comes into force. The question of how likely it is to remain in force is a political judgment to be based on factors largely relating, as I have said, to in whose interests it would be to remain in it for longest. [Interruption.]