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 Geoffrey Cox Geoffrey Cox The Attorney-General 12:39 pm, 12th March 2019

What I hope will not be lost on my hon. and right hon. Friends is why the hon. and learned Lady is insisting and pressing upon them the facts and matters that she has just been drawing to their attention. It could be, I wonder, that there is some ulterior motive in her concern about the absence of a unilateral exit mechanism in all circumstances.

Turning to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect—as anybody of his distinction should be listened to—I take issue with some of his comments. For example—my opinion sets this out and other lawyers are commenting to that effect this morning—the hon. and learned Lady does no justice to the fact that these measures and improvements do facilitate, and mean that there is a reduction of risk in, our being able to prove and demonstrate bad faith or want of best endeavours. She says that we could not terminate, but there is in fact in my opinion a clear pathway to termination.

As the hon. and learned Lady knows, I wrote in my opinion that if in the circumstance that we got a declaration from the arbitral tribunal that there had been a lack of best endeavours, having regard to the accelerated pace of negotiation which this new agreement now imposes, we could then move to suspend our obligations, if we wished to do so, under the protocol. If that suspension was prolonged, we could invoke article 20 to argue that it was no longer necessary because the inaction of the European Union demonstrated that it must think that it was no longer necessary, and that could lead to termination. It is therefore not entirely true to say that there is no way in which the provisions could be terminated. I say to the hon. and learned Lady that suspension, in these circumstances, is as effective as termination, because the only way in which the EU could restore the position would be for it to come back to the negotiating table with genuinely new proposals.