Withdrawal Agreement: Legal Opinion

Part of the debate – in the House of Commons at 12:39 pm on 12th March 2019.

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Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 12:39 pm, 12th March 2019

I am grateful to the Attorney General for his statement and for advance sight of it.

The Attorney General made it clear in his original advice of 13 November on the backstop protocol that:

“In international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part”,

and he was right, because article 178 of the withdrawal agreement is clear that the remedy of suspension of obligations is only ever meant to be temporary to secure compliance to the agreement and not as a gateway to a full exit.

So people quite rightly ask now what has changed. In her Strasbourg statement the Prime Minister said the joint interpretative instrument makes three changes. She said, first, that the UK can challenge the EU in an arbitration panel if the EU is found in breach of good faith and suspend the backstop. But that was already in article 178 of the withdrawal agreement; it is not new. Secondly, the Prime Minister said there is a legal commitment that whatever replaces the backstop does not need to replicate it, but the January letter of Presidents Tusk and Juncker said:

“Any arrangements which supersede the Protocol are not required to replicate its provisions in any respect”; it is not new. Thirdly, the Prime Minister said it entrenches in legally binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January, but on 14 January the Prime Minister told this House:

“My right hon. and learned Friend the Attorney General has also written to me today confirming that in the light of the joint response from the Presidents of the European Council and the Commission, these conclusions ‘would have legal force in international law’.”—[Official Report, 14 January 2019;
Vol. 652, c. 824.]

That is not new either.

I am going to take the Attorney General at his word, because he said in his Mail on Sunday interview:

“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop.”

I am going to be fair to the Attorney General: he has not changed his opinion. Let us read his advice to this House at paragraph 19:

“the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

I say to the Attorney General that paragraphs 15 to 19 of his advice constitute seven sentences that destroy the Government’s strategy of recent weeks—that sink the Government’s case that they had any chance of securing a right, under international law, to unilaterally exit the protocol’s arrangements. We have gone from having “a nothing has changed” Prime Minister to having “a nothing has changed” Attorney General.

In fairness to the Attorney General it is not just his view: it is the view of a number of other respected lawyers, including Professor Philippe Sands, Professor Sir David Edward and the Government’s own former counter-terror watchdog, now Lord Anderson QC. The Attorney General knows that speaking about reasonable endeavours and bad faith is one thing, but he can confirm the reality, which is that the new documents do nothing about the situation when the talks with the EU are at a stalemate not because of bad faith, but simply because both sides cannot reach an agreement.

Proving bad faith is extraordinarily difficult, and the Attorney General points that out in paragraph 16 of his own advice. The strongest remedy in this withdrawal agreement, even with this document, remains a temporary suspension. Indeed, we need only look at his own legal advice to see that, at paragraph 9, which speaks of

“suspension of all or parts of the Protocol, including the backstop, until there is satisfactory compliance.”

Trade talks can break down for a variety of reasons. For two parties to act on the basis of their own interests is not bad faith, and the Attorney General knows it. In these circumstances, despite any assurances about the temporary nature of the backstop, the reality is that it can endure indefinitely. Ninety-two days after the Prime Minister abandoned the first meaningful vote, in this Attorney General’s view

“the legal risk remains unchanged”.

What the Attorney General was asked to do, and what the Prime Minister promised in this House on 29 January—to change the text of the withdrawal agreement—simply is not possible. He is a lawyer; he is not a magician. Does not this whole episode of recent weeks show that when national leadership is required, this Prime Minister, as always, puts party before country?