EU Withdrawal Agreement: Northern Ireland

Attorney General – in the House of Commons on 7th March 2019.

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Photo of Helen Goodman Helen Goodman Shadow Minister (Foreign and Commonwealth Affairs)

What recent discussions he has had with Cabinet colleagues on the legal implications of the Northern Ireland backstop.

Photo of Patrick Grady Patrick Grady SNP Chief Whip

What recent steps he has taken to seek legally binding changes to the Northern Ireland protocol in the EU withdrawal agreement.

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

I regularly meet ministerial colleagues to discuss important issues of common interest, including matters relating to the United Kingdom’s exit from the Union. I am unable, I am afraid, to talk about the legal content of those discussions because, as Helen Goodman will know, the Law Officers are bound by the Law Officers’ convention to disclose neither the fact nor content of that advice.

I remain committed to considering what assistance I personally can provide to this House on the legal implications of the backstop, to ensure that Members have what they need to make an informed decision. We have been engaging in focused, detailed and careful discussions with the Union, and we continue to seek legally binding changes to the backstop that ensure it cannot be indefinite. These discussions will be resumed shortly.

Photo of Helen Goodman Helen Goodman Shadow Minister (Foreign and Commonwealth Affairs)

I am most grateful to the Attorney General for that very full reply. On 29 January, the Prime Minister told the House:

“What I am talking about is not a further exchange of letters but a significant and legally binding change to the withdrawal agreement...It will involve reopening the withdrawal agreement”.—[Official Report, 29 January 2019;
Vol. 653, c. 678.]

Given the response that the Attorney General has had in Brussels and the remarks of the French Minister on the radio this morning, is it still Government policy to seek a reopening of the withdrawal agreement?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

It is Government policy to achieve the necessary change in the backstop that will cause me to review and change my advice. That is Government policy; that is the subject of the discussions that we are having. I would say that it has come to be called “Cox’s codpiece”. What I am concerned to ensure is that what is inside the codpiece is in full working order.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Well! I hope everybody heard that. In the interests of the accessibility of our proceedings—in case anybody did not hear it—the right hon. and learned Gentleman referred to Cox’s codpiece. I have repeated it so that the alliterative quality is clear to all observers.

Photo of Patrick Grady Patrick Grady SNP Chief Whip

Thank you for that breather, Mr Speaker.

They say that the definition of insanity is repeating the same thing and expecting different results. Given that the Attorney General has not and will not be able to change a single word in this withdrawal agreement, how exactly would he describe the Government’s plans to put it to a vote again in this House next week?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

The plans for next week are not mine to decide, but what I can tell the hon. Gentleman is this: we are discussing detailed, coherent, careful proposals, and we are discussing text with the European Union. I am surprised to hear the comments that have emerged over the last 48 hours that the proposals are not clear; they are as clear as day, and we are continuing to discuss them.

Photo of Bill Cash Bill Cash Chair, European Scrutiny Committee

Will my right hon. and learned Friend give Parliament 48 hours’ notice or, at any rate, properly full notice of the outcome of his discussions with the EU? Will he provide to Parliament a draft of the withdrawal and implementation Bill, so that my European Scrutiny Committee, and others in Parliament and others outside, can assess how the withdrawal agreement will be enacted in domestic law, as obliged by article 4 of the withdrawal agreement; how the Bill would ensure the statutory manner in which the express repeal of the European Communities Act 1972 will be dealt with; and how the question of disapplication by the courts—by the Supreme Court—will be handled under that enactment?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

We will endeavour to give as much notice as we possibly can. Of course those discussions are running. They will resume very shortly and continue almost certainly through the weekend. We will endeavour to give the House notice as early as we can, if and when we have something to report. My hon. Friend made a second point about the Bill. That is not for me to decide, although I will certainly discuss the matter with those who will make that decision. We will endeavour to give the European Scrutiny Committee, and my hon. Friend, the earliest possible notice.

Photo of Mark Francois Mark Francois Conservative, Rayleigh and Wickford

The Attorney General is now in the interesting position of leading on these negotiations, which means that—to follow his nomenclature—he will end up examining his own codpiece in front of the House of Commons. How can he provide the objective advice to the House on which we rely when he will, in effect, be marking his own homework?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

The law is the law. The question of whether whatever is negotiated with the European Union affects the legal risk of the indefinite duration of the backstop is a matter that I shall judge entirely impartially and objectively. If I did not, I would be conscious that there are many lawyers—

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

The hon. Gentleman may be right. There are many lawyers who are eminently capable of deciding whether I have got my judgment right or wrong.

Photo of Hilary Benn Hilary Benn Chair, Committee on Exiting the European Union

Article 175 of the withdrawal agreement which, as the Attorney General knows, deals with resolving disputes about the interpretation of the agreement, states that rulings of the arbitration panel shall be binding on the EU and the UK. In his letter to the Prime Minister of 13 November, the Attorney General stated that although the withdrawal agreement does not

“expressly state” that the backstop review mechanism

“is intended to be arbitrable…I consider that the better view is that it is.”

In his recent discussions with the EU, has it confirmed that it shares that better view—in which case, why would one need to consider another separate arbitration mechanism for dealing with the backstop? Or has the EU said that it does not regard binding arbitration as applying to the backstop itself?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

That is a question I would have expected from such a sophisticated Select Committee Chair. The problem is that although the arbitration system applies to the protocol, the question that one asks the arbitrator is at the heart of the effectiveness of any arbitration. Although I am not at this stage able to disclose to the right hon. Gentleman the question that has been proposed by the United Kingdom to the Commission, the question is everything. He may very well need to take that into account, because the question about when the protocol would end is likely to be determinative of whether the mechanism is effective.

Photo of Bob Neill Bob Neill Chair, Justice Committee

I am glad to see that the Attorney General’s powers of alliteration have not dimmed since we first appeared in court together, and I know that neither have his independence, rigour, and respect for his constitutional position, which should never be questioned. Does he agree that when dealing with important matters of textual analysis and detail, it is unhelpful to attempt a running media commentary? Such commentary will inevitably be partial and inaccurate, and these matters are best pursued with care and rigour, and with the overall objective that he has just given to Hilary Benn.

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

I am most grateful to my hon. Friend for that question, and of course he is right. Any negotiation of this kind involves dealing with complex legal questions and matters, and a running commentary that is partial and often based on hearsay and rumour is not helpful to the analysis of the question, or conducive to the success of the negotiations.

Several hon. Members:

rose—

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

Order. I am sensitive to the fact that this issue is of enormous, and for some consuming, importance. I therefore want to let the question run, but colleagues must ask short questions of one sentence, and the Attorney General will treat them as he sees fit.

Photo of Gavin Robinson Gavin Robinson Shadow DUP Spokesperson (Home Affairs), Shadow DUP Spokesperson (Defence)

I understand that the Attorney General’s conversations with the Cabinet are privileged, but has he turned his mind to the concerns that, should the backstop be indefinite, it is likely to breach the commitments under the Belfast agreement, and indeed the commitments that are given to me as a Northern Ireland citizen under article 3?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

The hon. Gentleman knows that if I were to answer that question, I would be breaching the Law Officers’ convention. All I can say is that I turn my mind to a great many of the legal implications of the treaty, and those that he has mentioned have not escaped me.

Photo of Vicky Ford Vicky Ford Conservative, Chelmsford

The withdrawal agreement contains many issues that we all agree on, such as citizens’ rights and a transition for business. Is it still the EU’s negotiating position that in order to reach agreement on our long-term relationship we need to agree a withdrawal agreement first?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The Northern Ireland protocol is there primarily to protect the peace process. Yesterday, the Secretary of State for Northern Ireland made some rather unfortunate comments that killings during the troubles at the hands of the security services were “not crimes”. Has the Attorney General advised her that her comments were ill-informed, insensitive and seriously potentially contemptuous of the current legal process, wherein the Director of Public Prosecutions is shortly to announce whether prosecutions will be brought against soldiers for unlawful killings on Bloody Sunday? Will he please tell his colleagues to be more mindful of these conventions in future?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

I think the hon. and learned Lady knows that the Secretary of State has corrected those comments. I do not think it is necessary for me to advise her on the various matters that she suggests. I believe firmly that the Secretary of State will not have intended any offence and she has, in any event, corrected those remarks.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

It is widely reported that, should the Attorney General have a more successful trip to Brussels tomorrow than he has managed so far this week, he will be putting any concessions that he receives on the backstop to a star chamber of Eurosceptic lawyers—one QC, six Tory MPs and one Democratic Unionist party MP. Why are there no MPs from other parties in the star chamber?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

I assure the hon. Gentleman that I shall be putting them to the star chamber of this House. I am delighted that there are eight very distinguished Members who are going to sit in judgment on my opinion, but I expect and welcome the judgment of all Members of this House, on both sides of it.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security)

I really hope the Attorney General appreciates the fundamental concerns here, because it now seems that as well as being part of the negotiating team he is advising the Government on the outcome of the negotiations. It seems he will then bring his proposals to the star chamber and then he will have to answer to this House. First, will he commit to publish any advice that he gives the Prime Minister on any concessions that he receives? Secondly, will he record what he has said in the star chamber, so that all MPs can make a decision on Tuesday on exactly the same information?

Photo of Geoffrey Cox Geoffrey Cox The Attorney-General

The hon. Gentleman is labouring under a misconception. I am not appearing before any star chamber, either on this side of the House or the other. The star chamber I am appearing in front of is this House. I will account to this House. I am not going to be appearing in front of any star chamber, although it is composed, as I say, of exceptionally distinguished people. Any Member of this House can come and see me if they like and I shall account to this House. I say to the hon. Gentleman: do not grieve because I shall, I assure him, be wholly open about my advice. He asks me whether I will commit to publishing it. I will commit now to saying to this House that I shall publish my legal opinion on any document that is produced and negotiated with the Union.