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.
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“shall apply unless … they are superseded, in whole or in part, by a subsequent agreement”.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