Brexit: Withdrawal Agreement and Political Declaration - Motion to Take Note (1st Day) (Continued)

Part of the debate – in the House of Lords at 3:30 pm on 5th December 2018.

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Photo of Lord Goldsmith Lord Goldsmith Labour 3:30 pm, 5th December 2018

My Lords, this has been a rollercoaster of a week, not just from a political point of view but from a legal point of view. I say at the outset that I have some sympathy for the position of the Attorney-General. No one who has not done that job will appreciate how difficult it can be. He expressed himself robustly and with great confidence in another place; it was a stupendous performance, for those who had the privilege of watching it.

However, the point that I want to dwell on in my few comments is that, ultimately, what the Attorney-General gave was not a legal opinion. The key issue with which we—and, I suggest, all noble Lords—are concerned is: what is the prospect that, if we go into this deal, we will be able to exit from the backstop with a degree of confidence and reliability? He gave an assessment born of confidence and a strong conviction in the Government’s political stance. He is, of course, fully entitled to that view—but at the end of the day it was a political view, not a legal view.

Now, since the disclosure this morning of the Attorney-General’s advice to Cabinet on what the legal position actually is, in his opinion, we have a much clearer view. That is what I want to turn to first. The document is revealing. The key point I wanted to make, even before I saw it, was that in legal terms, entering into this deal would potentially tie us indefinitely into the backstop arrangements. There is no legal route to exit from the backstop: only a political agreement between the EU and the UK would do that.

That view is now endorsed emphatically in the Attorney-General’s advice to Cabinet, and I commend that document to the House. He says, in paragraph 30 that,

“the current drafting of the Protocol, including Article 19”— which is now Article 20—

“does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement”.

Noble Lords will note that he goes on to say:

“This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement”.

In his Statement to the other place, the Attorney-General also said:

“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”.—[Official Report, Commons, 3/12/18; col. 547.]

I agree with that. There is no unilateral right to terminate this arrangement.

I want to make three points about the advice that your Lordships and the other place have now seen. First, it is now clear that certain of the makeweight legal arguments put forward to suggest another conclusion are without substance. That is what I believed and intended to put before the House, but the Attorney-General’s opinion makes it abundantly clear.

In particular, first, it had been suggested that reliance could be placed on the statements that the protocol is intended to be “temporary”. It is now clear that, as I believe, that is misplaced. As the Attorney-General says in paragraph 16 of his advice to Cabinet:

“It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down”.

He goes on to say that,

“despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements in international law, the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein”.

I emphasise the words “would endure indefinitely”, because they are critical to this analysis—and they are right. The protocol makes clear—for example, in Article 1.4, and in the preamble—that only a subsequent agreement will bring it to an end.

Secondly, as the Attorney-General said, the review mechanism in Article 19, now Article 20, adds nothing. It states that by mutual consent—that is, agreement of the EU and the United Kingdom—the protocol could be brought to an end, but that is what international law already provides. The suggestion has been made, particularly in this House by the noble and learned Lord, Lord Keen, that the arbitration and dispute resolution provisions would kick in to create a different situation. Noble Lords may recall that I was sceptical about that and challenged that proposition when it was raised in this House.

The House can now see that the view of the Attorney-General is the same as mine. I refer in particular to paragraphs 27 to 29 of his advice to the Cabinet. He makes the point, with which I respectfully agree, that,

“it is extremely difficult to see how a five member arbitral panel made up of lawyers who are independent of the parties would be prepared to make a judgment as political as whether the Protocol is no longer necessary, in the absence of the consent of the parties”.

In paragraph 28, he says that there is no other mechanism for adjudicating a dispute over the absence of an agreement and confirms that there are no “remedies” for an absence of agreement other than those specified “expressly” in the withdrawal agreement, which,

“does not include termination of all or part of the Withdrawal Agreement”.

Noble Lords may recall that, in answer to me, the noble and learned Lord, Lord Keen, confirmed that the protocol does not contain a power in the arbitral panel to substitute an agreement that the parties have not themselves made.

Thirdly, the noble and learned Lord placed much emphasis on the duty to use best endeavours, while the Attorney-General describes the duties to act in good faith and to use best endeavours as “forceful and precise”, acknowledging that,

“that could not require the parties to a negotiation to set aside their fundamental interest”.

In other words, the parties could not be proven to have breached those obligations,

“in the absence of clear and convincing evidence of a proper motive and wilful intransigence”.

I would add that Article 184 makes it clear that, in any event, the agreement is subject to the “respective legal orders” of both parties. Reliance has been placed on a number of authorities in the commentary provided by the Attorney-General, which do not contradict what I just said.

Before I conclude on what that all means, I invite noble Lords to note that the advice also seems to confirm that there will be different regulatory regimes in Great Britain and Northern Ireland, which will require customs and regulatory checks and controls. I invite attention to paragraphs 7 and 8 of the Attorney-General’s advice.

Where does this all lead? I respect the noble and learned Lord the Advocate-General—I have had the pleasure of appearing with him in court—but that does not mean that legal arguments we might be prepared to advance are a sound basis on which we should put the future of our country. If there is an agreement between the EU and this country, we will exit but, as noble Lords know, that would require unanimity. That means that any state, whether it is France because of fishing rights or Spain because of Gibraltar, could prevent such an agreement coming into effect.

One may be prepared to put reliance aside in the political hope that this will all be unnecessary. On an earlier occasion, the noble Lord, Lord Bridges, referred to the dangers of going on a “gangplank into thin air”. If any Members of the House or another place think that there is a legal gangplank made of solid legal planks to get us there, I respectfully advise them that that is not the case. The gangplank of legal planks is simply a hologram. I am not prepared to trust my or my country’s weight to it and I advise noble Lords not to do so either.