Withdrawal Agreement: Legal Position

Part of the debate – in the House of Commons at 4:49 pm on 3rd December 2018.

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Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 4:49 pm, 3rd December 2018

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 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 he 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.