Brexit: Legal Position of Withdrawal Agreement - Statement

– in the House of Lords at 6:50 pm on 3rd December 2018.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 6:50 pm, 3rd December 2018

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable and learned friend the Attorney-General. The Statement is as follows:

“Mr Speaker, with your leave, 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. My Statement today 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 honourable 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 by 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, prepared for the purpose of the debate and published this morning, which 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.

In making this Statement in these unusual circumstances, and in answering any questions that honourable 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 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 it can pass under any misapprehension whatever 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 agreement can only inform the essentially political decision that each of us must make. This is not a question 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 the pertinent questions that the skill and ingenuity of honourable Members may devise. However, I am aware that there are certain parts of the agreement whose meaning attracts the close and keen interest of the House, and it is to some of these that I now turn.

The first is 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 United Kingdom and the EU agree 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 the Republic of Ireland’s 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 which supersedes this Protocol”.

There is a separate but closely related duty on the parties under Article 184 of the agreement to negotiate expeditiously and use their best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by Article 1(4), the protocol 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 the 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 United Kingdom would form with the European Union 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 Union Customs Code.

These 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 these 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 single market. In all other aspects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where these aspects 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 now to the role of Union law and the Court of Justice of the European Union under the withdrawal agreement and within the dispute settlement provisions to which I have referred. It is important to place these provisions in the context of the objectives of the agreement: the orderly exit of the United Kingdom from the EU for our citizens and businesses. To this 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 March 29 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 are 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 this period, on 31 December 2020, that will come to an end.

Thereafter, Union law and the European Court of Justice will possess a relevance in the UK 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 these particular groups of people must continue to be defined by reference to that law. These rights are provided for in Part Two.

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 UK will look to the United Kingdom’s 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 Court of Justice of the European Union where the determination of such a question is necessary to resolve a dispute. Instead, pursuant to Article 158, for a fixed period of eight years only the UK courts may refer to the Court of Justice of the European Union a question of interpretation of Part Two of the agreement in the interests of achieving consistency in the enforcement of the rights the citizens of each enjoy, and 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 of the Court of Justice of the European Union 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 Three 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 the 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 of Justice of the European Union an alleged breach of an obligation incurred prior to the end of the implementation period.

Part Five deals with our agreed financial obligations. It provides under Article 160 for Union law and the jurisdiction of the Court of Justice of the European Union to apply beyond the implementation period only for the time and purpose of closing out the United Kingdom’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 of Justice of the European Union will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom.

A dispute between the EU and the United Kingdom about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel, in which the Court of Justice of the European Union 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 of Justice of the European Union to resolve that question only. 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. I commend this Statement to the House”.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General 7:03 pm, 3rd December 2018

My Lords, I am of course grateful to the Minister for repeating that Statement and for advance sight of it and the position paper published today. However, all Members of this House and, even more importantly, all Members of the other place are at a major disadvantage when asking questions because they have not read the legal advice upon which the Statement is based. It is totally unacceptable that we are in this position when aspects of the Attorney-General’s advice have been selectively leaked to the press over the weekend. Perhaps the noble and learned Lord can confirm that in the Attorney-General’s letter to Cabinet Ministers last month, as has been reported, he declared in respect of the backstop arrangement:

“The protocol would endure indefinitely”,

if trade talks broke down.

On 13 November in the other place, my colleagues the shadow Brexit Secretary and the shadow Solicitor-General were both crystal clear that what was sought was the final and full advice provided by the Attorney-General to Cabinet on any completed withdrawal agreement, made available to all Members of Parliament in good time for the vote on the deal. Offers short of that made by the Government, including the Attorney-General’s Statement today, were roundly rejected and the House of Commons passed the Motion unanimously. The Government could have voted against it and did not.

The reality must be that the Government do not want MPs to see the advice for fear of the political consequences. There is no point in trying to hide behind the law officers’ convention; the Ministerial Code and Erskine May are very clear that Ministers have a discretion, as part of that convention, to make advice available in exceptional circumstances. Surely few circumstances could be more exceptional than these. The economic, political and constitutional integrity of our country is at stake and the House of Commons is tasked with authorising the deal.

Paragraph 82 of today’s position paper confirms that there is no unilateral exit mechanism from the backstop for the United Kingdom—I stress, no unilateral exit mechanism. Perhaps the Minister could point me to a precedent for such a locked door with only one party as keyholder, which would not be us. Can he point to such a precedent in another treaty of recent times, or at all? The Government’s argument that the backstop will be only temporary is a political one, and politics changes. It is not the same as a firm, legal position. But 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”.

Put simply, this means that parts of the backstop could become permanent even in the event that a trade deal were agreed. Can the Minister tell us of his view as to the parts of the backstop arrangement in this protocol that he considers most likely to become permanent?

There is then the impact on the Good Friday agreement. Page 305 of the withdrawal agreement refers to the need for this protocol to be implemented so as to,

“maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Can the Minister confirm what his view is about, first, new arrangements that he believes would be in accordance with the 1998 agreement and, secondly, which new arrangements he believes would not be in accordance with it?

It is of course for the other place to rule as to whether there has been an arguable case for contempt in what we on these Benches believe to be a failure to comply with the Commons Motion of 13 November. But for the sake of our economy, our jobs and our futures, all possible information should be made available to those asked to vote on this deal. The Government should do the right thing and make the advice available. With so much at stake for all our people and with eight days now before the vote on the deal, both Houses and the country deserve better from this Government.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,

“assurances that we cannot be kept permanently in the backstop”.

That is not the view of the Attorney-General as set out in this Statement. He says:

“There is … no unilateral right for either party to terminate”,

the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.

The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.

Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am obliged to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Thomas of Gresford, for their observations. I shall begin by saying clearly that I am not going to comment upon leaks to the media that may or may not have been made and may or may not be accurate, and I am not going to comment upon any correspondence that the Attorney-General may or may not have had with members of the Cabinet. Like the noble Baroness, Lady Chakrabarti, I observe that the issue of contempt is one for the Speaker and Members of the other place, and I make no further observation on that point.

The steps taken by the Attorney-General and the Government in respect of this matter are consistent with and correspond to the undertakings that were given in the other place by my right honourable friend the Chancellor of the Duchy of Lancaster.

A great deal has been said about the Northern Ireland protocol and the backstop. I begin by observing that it is the intention of the Government that the backstop should never be required and that during the implementation period we will engage in negotiation for an agreement that will mean that the backstop itself is not required. But of course there remains the possibility that it will be required; albeit it is one of two alternatives, because the alternative is to extend the transition or implementation period.

Let us look at the backstop itself. The noble Lord is quite right to say that, on the face of it, there is no unilateral right to withdraw from the backstop. That is quite clear in the terms of the protocol to the withdrawal agreement. But that is not the end of the story by any means. There have been various suggestions that somehow the United Kingdom, including Northern Ireland, will be locked into the backstop indefinitely, for ever. The noble Baroness, Lady Chakrabarti, talked about the single keyholder being the European Union, which at its whim will simply decide to leave the door locked and walk away with us in the backstop for ever and a day. That is simply unsound as an analysis of the legal position.

Under the terms of the Northern Ireland protocol, and, in particular, Article 2, there is an express obligation on the parties to use their best endeavours to reach an agreement that will not require the maintenance of the backstop. The term “best endeavours” is well worn in both domestic and international law and imposes a strong obligation upon the parties to conduct themselves in such a way that they can realistically and reasonably achieve an alternative settlement. If that obligation is not obtempered or met by one or other of the parties simply because it wants to leave the backstop in place indefinitely, there is a dispute resolution mechanism. It is not just about acting in good faith or about whether or not the backstop is necessary; it is whether or not the backstop continues to be necessary because one or other party has not used its best endeavours to adopt or agree an alternative arrangement. That would be subject to arbitration in terms of the withdrawal agreement.

Pursuant to Article 178 of the withdrawal agreement, if there was a failure on the part of a party to obtemper the ruling of the arbitration panel, which can be arrived at by a majority, there would be the right on a temporary basis to suspend implementation of a part of the agreement that was being held in place simply because of a breach of that obligation of good faith. But it goes further than that. In the event that there was a persistent failure on the part of, for example, the EU to obtemper its obligation of best endeavours and to adopt what was plainly a suitable alternative arrangement for the Northern Ireland protocol, one would have regard to Article 60 of the Vienna Convention on the Law of Treaties, which provides that a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. You then look at the definition of a material breach.

So this is not a case of being locked in with the EU holding the key. It has clear, express and unambiguous legal obligations to obtemper in the context of the Northern Ireland protocol, and if it fails to do so then there are remedies available. I reiterate that it is not a case of one or other party having the unilateral right simply to walk away from the protocol. That would not be appropriate in any form of international agreement. There is a mechanism whereby the agreement cannot be abused by either party and whereby if it is abused, there can be a resolution involving termination or suspension of a particular provision.

Candidly, I do not believe that two bodies such as the United Kingdom and the European Union are going to find themselves in a situation in which, over a period of time, one or other is not going to act in good faith in the field of its international obligations and is not going to discharge its obligations to use its best endeavours to arrive at an alternative agreement.

I hope that that goes some way to meeting the points raised by the noble Baroness, Lady Chakrabarti, and the noble Lord, but I emphasise that, ultimately, I am seeking to address the legal issues that arise in the context of the withdrawal agreement and, like the Attorney-General, I am perfectly prepared to answer any question from this House on the law—albeit they may be better informed by other and better lawyers inside and outside this House. I have no difficulty in responding, in so far as I can, to legal issues raised with regard to the withdrawal agreement. The Attorney-General took exactly the same position in the House of Commons. He recognised his duty not only in government but to the House to give such legal assistance as he could to the House to resolve any issues that may arise in this context. That is where we stand.

I just add this. After 45 years, clearly there are issues to be worked out between the parties, and the withdrawal agreement will allow for the necessary time and legal means for that process to unfold in an orderly, peaceful and sensible way. I reiterate that I am at the disposal of the House to answer questions of law, although they might be better answered by other Members of the House. Thank you.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 7:21 pm, 3rd December 2018

My Lords, I speak as a former Attorney-General. I adhere to the convention that it is not in the public interest to disclose the fact or the content of the Law Officers’ advice. However, there have been exceptions, such as the debate on the Maastricht treaty and the exceptional circumstances of the Chilcot inquiry. We are grateful for the 43-page document setting out the legal position, but I ask specifically whether, in the public interest, without going into detail, the Attorney-General has reserved disclosure on any matters that he has advised on. Secondly, will the Minister confirm that there is nothing in the document incompatible with the advice that the Attorney-General has given to Her Majesty’s Government?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I fear that to answer the first question would be to breach the relevant Law Officer convention, but with regard to the second, let me be clear: there is no inconsistency between any point made in the legal commentary and anything that might or might not have been said in government.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, does my noble friend agree that there is a very good reason for the convention that advice from the Attorney-General can be kept confidential to the Government? Nobody who voted on that proposal for a contempt Motion has the slightest idea whether some of that advice might be advantageous to the people against whom—or with whom—we are negotiating. I do not know how many noble Lords have listened in the past two hours to the extraordinary exposition by the Attorney-General—I think, quite without precedent—in which he undertook to answer any question from anybody in the House, seeing himself as responsible not merely to the Government but to Parliament, to the Commons, in his particular position. He discharged it effectively, and nobody who voted in the original vote that the papers ought to be published had the slightest idea that that was how the Attorney-General would approach his responsibilities.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I thank my noble friend for his observations and entirely concur. I emphasise a point he touched on: we are engaged in continuing negotiations with the European Union to determine our future relationship. It would not be appropriate for us to disclose matters that would impact on the conduct of the negotiations, any more than we might expect the European Union to disclose to us the confidential legal advice that it may or may not have received in conducting those negotiations.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, in the giving of advice in any letter or papers that the Attorney-General submits to the Cabinet, does not good government require complete candour not only on the strengths but on the vulnerabilities of the Government’s position? It would be impossible for the Attorney-General to write with such candour if he were aware that his advice would be published.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am obliged to the noble Lord, who draws on a great deal of experience where these matters are concerned. I entirely agree with his observation: it would render the law officers’ position almost impossible when advising government fully, candidly and without reservation, if it was felt that that advice was then to be put into the public domain—let alone put into the public domain when we were carrying on relevant negotiations such as those we are carrying on with the European Union.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat Lords Spokesperson (Defence)

I regret to find myself in disagreement with the noble Lord, Lord Butler. I come back to the question of convention. No one can be in any doubt of the significance of the events that we are living through at the moment. Casting back in my memory, the only similar occasion I can think of is the decision to take military action against Saddam Hussein. On the eve of the debate in the House of Commons the noble and learned Lord, Lord Goldsmith, who I see in his place, answered a Written Question from—if my memory serves me right—the noble Baroness, Lady Ramsay of Cartvale, setting out the legal basis and justification for military action. Surely when the circumstances demand it, the convention can be dispensed with.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

With respect to the noble Lord, the circumstances in which the totality of the advice of the noble and learned Lord, Lord Goldsmith, came out were rather more complex than that, but let us address the immediate issue. What he was considering in that context was the lawfulness or unlawfulness of the action contemplated by the Government. That is not the position that pertains here.

Photo of Baroness Bryan of Partick Baroness Bryan of Partick Labour

My Lords, in 2012 in Scotland we faced a huge decision—perhaps not on the scale that we face now—but the then First Minister claimed that he had received legal advice from the Lord Advocate on the question of an independent Scotland’s relationship with the EU. He used the Ministerial Code to refuse to give details of that legal advice. Ruth Davidson, leader of the Conservative Party in Holyrood, said of this excuse that the,

“people of Scotland needed the truth”.

Does the Minister agree that a similar statement could be made on our behalf here today—that we should understand the nature of the advice provided?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

With respect to the noble Baroness, the then First Minister’s record on when and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.

In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.

The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.

Question!

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

In my view, the fact that the House of Commons is entitled to get any advice from the Attorney-General that it wishes is the answer to this question.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am obliged to my noble and learned friend, and I entirely concur with his observations. As I sought to indicate earlier, as a law officer I am willing to take questions on matters of law that the House deems it appropriate to render to me, albeit I understand and appreciate that they may have better sources of legal advice than me. Some of your Lordships who are aware of the proceedings in the other place will know that the Attorney-General made a clear and unambiguous undertaking to Members of that House to fully, properly and clearly inform them on legal questions that they pose with regard to the withdrawal agreement, and he would do so with fidelity.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench

My Lords, may I take the Minister back to his answer to the noble Lord, Lord Thomas of Gresford, who alluded to the statement in paragraph 158 of the explanation document published on 14 November? The Minister’s answer built quite a lot on “best endeavours”, which in diplomatic parlance is an oxymoron. The Attorney-General seems to me to have thrown a lot of very honest and clear light—in the memorandum, in his Statement and in what he said to the House after his Statement—on what is to me a desperately humiliating proposal.

If we were in the backstop, we would be observing the common external tariff and common commercial policy of the EU, policies in which we would have no say. The backstop makes clear that we would be informed about any changes in the tariff. We would be informed—not even consulted—about any changes in our external tariff. The potential longevity of the backstop is therefore quite an important issue. I thought the Attorney-General was very honest when he said it was a calculated gamble and he did not believe that we would be likely to be trapped in it for ever. In other words, he accepted the possibility that we might be trapped in it, wholly or in part, for ever. I myself would not wish to run that risk. The French have a saying, “Nothing lasts longer than the provisional”. Would the Minister like to try to give a more complete answer to the question from the noble Lord, Lord Thomas? I do not think “best endeavours” is quite enough.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I thank the noble Lord for his observations. He goes some way towards explaining why we arrange for these agreements to be interpreted by lawyers, not diplomats. Of course entering into something such as the Northern Ireland protocol involves an element of political judgment; we have to accept that, and the Attorney-General was entirely candid about that. There is a political judgment to be made. There is in the agreement no express right of unilateral withdrawal, and we accept that as well. However, if one or other party decides not to obtemper their obligations, there are mechanisms to address that.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, I am sure the Minister will accept that this matter has major implications for Northern Ireland as an equal part of the UK and that the “best endeavours” that are spoken of today bring little comfort to us. So that we are not left to rely upon leaks from Cabinet papers, will the Minister confirm that the Attorney-General’s legal advice contains a warning on the use of the Irish backstop, in that it will continue unless and until a trade agreement between the UK and the EU supersedes it?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I thank the noble Lord for his question but I am not in a position to say that the Attorney-General has or has not given legal advice on any issue to the Cabinet.

Photo of Lord Goldsmith Lord Goldsmith Labour

My Lords, I do not intend to come back on the question of whether or not the Attorney-General’s advice should be disclosed; my views on the undesirability of that in the past are well known. I want to come on to the question of substance, which is important. The Minister has talked about the backstop and how it may be avoided. Could he confirm that the backstop will come in unless there is a concluded agreement? Could he confirm that, as the Statement by the right honourable Attorney-General says, it would continue in force,

“unless and until it was superseded by the intended subsequent agreement”?

That corresponds with the provisions of Article 1.4 of the protocol and indeed of the recital. Does the Minister agree that there are obstacles to avoiding that? He says you can use the “best endeavours” obligation. The right honourable Attorney-General said you can prove that only with “Clear and convincing evidence”. Does he agree with that? Does he also agree that simply finding a note dropped by President Macron saying “I don’t want to do a deal with the UK” will not satisfy that requirement?

Could the Minister please explain how the arbitrators have the power to impose a deal on the EU or the UK? It is one thing to say that someone is in breach of a provision; it is another entirely to impose on us and the EU an agreement that we have not reached. I go back to the words,

“until it was superseded by the intended subsequent agreement”.

I could find nothing in the 500-odd pages saying that the arbitral panel has the power to impose such an agreement. I see nothing that says anything other than that if the dispute is there, it can be passed to the arbitral tribunal. But how does the arbitral tribunal impose that, and why does the protocol state that it remains in force unless and until it is superseded by a subsequent agreement, rather than its saying unless and until it is superseded by a subsequent agreement or a decision of the arbitral tribunal?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I thank the noble and learned Lord for his observations. His last comment is not the position under the agreement. It is not for the arbitral tribunal per se to simply impose an alternative agreement to the backstop, so let us clear that out of the way.

Let us look at the terms of the Northern Ireland protocol itself. If the backstop comes in, it will continue until superseded by an alternative agreement that the parties consider renders the existing backstop in the protocol no longer necessary. That is perfectly clear. It does not address the situation in which one or other of the parties simply fails to obtemper their legal obligations under the Northern Ireland protocol, including the obligation to use their best endeavours to arrive at a new arrangement in place of the existing backstop. In that event, the matter will ultimately go to the arbitral tribunal. Pursuant to Article 178, it has certain powers. It can impose financial penalties, just as the EU can impose financial penalties on a member that does not obtemper its obligations under EU law. The arbitral panel will have the power to impose financial obligations on parties who are in breach. If they do not then obtemper their obligations, it has the power to allow for the suspension of an obligation under the terms of the protocol.

These are temporary measures that would be taken to ensure that a party ultimately performs its obligations under the treaty. Failing that, there is the issue of Article 60 of the Vienna convention. However, I do not believe that anyone anticipates that we are going to go down that road. It is very clear that, for political reasons, it would not be in the interests of the EU, any more than those of the United Kingdom, to prolong the backstop in the Northern Ireland protocol any more than is absolutely necessary to maintain the integrity of the Good Friday agreement and the open border on the island of Ireland.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

My Lords, the noble Baroness, Lady Chakrabarti, asked my noble friend whether he could identify any precedent for a country handing over such a wide range of vital issues affecting its national interest to a panel of arbitrators. Does he have an answer to that question?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

It is not uncommon for very material issues pertaining to the territorial integrity of a country to be put into the hands of a third party. I cite the recent case of Bolivia and Chile before the International Court of Justice, where judgment was delivered on 1 October this year, with regard to the failure to agree over the issue of access to the Pacific.