Northern Ireland Backstop: Conditional Interpretative Declaration

Debate between Jim Shannon and Edward Leigh

Thursday 21st February 2019 Commons Chamber

[Sir Edward Leigh (Gainsborough) (Con)]

On 23 June 2016, the voters of the United Kingdom gave their instructions to the Government by a majority of over 1 million. Since then, it has been both the duty and the policy of the Government to implement the result of this people’s vote—a vote which the people were promised was a full and final decision, and which the overwhelming majority of Members of Parliament promised to enact. In passing the withdrawal agreement, the Government may find it valuable to use an instrument of international law called a conditional interpretative declaration to clarify our understanding of the temporary nature of the backstop.

I have been a passionate critic of our relationship with the European Union for decades. There has been a fundamental difference between what the EU has always been and what we were told it was. In the 1970s, we were told that it was a common market—a mere economic relationship. Of course, given our geographical proximity, a great deal of economic integration and co-ordination makes sense. We want to facilitate trade so that our workers and businesses can grow in prosperity together. But the EU was always a project for a political union that the people of this country never fully understood or assented to.

It has been clear to me, and to many, since the Maastricht treaty that the EU’s trajectory and the desires of the British people were moving in entirely different directions. I questioned Maastricht from inside the Government in 1993 and was sacked for doing so—a fate that I hope does not befall the present Minister—and I voted for Brexit in 2016, as did 62% of my constituents in Lincolnshire. I am sure that my bona fides as a Brexiteer are established.

The proposed agreement with the EU consists of four legal documents. I want to use this Adjournment debate—a quiet moment for reflection away from the political hurly-burly—to go into this matter in some legal detail. The main agreement deals with citizens’ rights, companies being able to fulfil existing contracts, court cases being finalised and so on. These are the sensible and just features of an amicable parting of ways. Equally, we welcome the two protocols providing for continuing co-operation with Cyprus over our sovereign base areas and with Spain concerning Gibraltar. It is the protocol on Ireland, known as the backstop, which causes immense problems.

The proposed agreement deals only with the direct questions of how to disentangle ourselves from the European Union’s institutions. On 29 January, the Commons endorsed the amendment tabled by my hon. Friend the Member for Altrincham and Sale West (Sir Graham Brady) requiring that the backstop be replaced with alternative arrangements, and that is what we are negotiating in Brussels at the moment.

The weaknesses of the backstop are manifest. There are legitimate fears that, if negotiations for a permanent UK-EU relationship break down, we may find ourselves legally obliged to be stuck in a customs union without end. Indeed, we have read my right hon. and learned Friend the Attorney General’s opinion, which worries many people. Were we to be stuck in a customs union, it would be a complete betrayal of voters and the referendum mandate, not to mention the Government’s solemn commitments to implement Brexit.

Given the current state of play, it looks as though there are four options at hand. The ideal solution is for the backstop to be withdrawn and the protocol to be withdrawn from the withdrawal agreement. A new protocol could be submitted committing the UK and the EU to sorting out a trade facilitation agreement using electronic documentation, trusted trader schemes and remote electronic monitoring of cross-border traffic, with no hard border or any kind of physical infrastructure.

It is not impossible to get such an agreement in place by 29 March, but it is unlikely, unfortunately, given the strong opposition within the EU to changing the agreed text. They simply do not want to unpick the agreement. Indeed, they have made that clear many times.

[Jim Shannon (Strangford) (DUP)]

I thank the right hon. Gentleman for giving way and for putting forward his viewpoint in the Chamber today. No matter what the issue may be, the Unionist population in Northern Ireland are clear that they do not want a backstop, and if it is going to be removed, it has to be via a legally binding document that will reinforce and give us confidence in any process that goes forward. We do not want Northern Ireland to be treated any differently from the rest of the United Kingdom. I know that the right hon. Gentleman is saying that, so if we move forward, the backstop has to be removed or it has to be time limited within this term of Parliament because we can then control it in the House in the time that is available to us.

[Sir Edward Leigh]

I entirely agree with that. I have been working on this issue with international lawyers for some weeks precisely to try to implement what the Democratic Unionist party wants, first because that is the way to get this through Parliament and secondly because I agree with it. I agree with the DUP. In fact, I agree with the DUP on most things. If the hon. Gentleman will be patient, I will try to outline a legally enforceable way in which we can time-limit the backstop. That is terribly important. It has to be clear cut, legally enforceable and, above all, not subject to any kind of arbitration that is in any way in the hands of the EU. I am trying to get to where the DUP is, and if the hon. Gentleman will listen, I hope that I can help him out with a way forward. In fact, I hope that I can help out the EU and our Government.

We all know that the unfortunate thing is that the current deal cannot get through Parliament because people do not trust the EU not to spin things out, but the EU says that it will not unpick the agreement. That is why everyone says that there is an impasse. I am not sure that that is entirely correct. I think there is a way of proceeding.

I was saying before the hon. Gentleman’s intervention that we could get an agreement and get rid of the backstop altogether, but that is unlikely given the EU’s attitude. Secondly, there is a reasonable possibility that even without any amendments to the current agreement, “alternative arrangements” could start to operate on the Northern Irish border during the transition period. These would supersede the protocol and make it irrelevant before it could even be applied. Indeed, the Prime Minister has said many times that she does not even want the backstop to come into force. Unfortunately, but understandably, there is not enough trust in the Commons to rely on that happening.

Thirdly, there is the suggestion of a unilateral exit mechanism. It would be contained within the withdrawal agreement, which would be renegotiated, but the EU is unlikely to agree to any amendment that allows the UK to exit from the backstop if negotiations have broken down, without the EU’s consent. That is where we are at present. Even if such a thing were agreed, the EU could easily prevaricate and deny negotiations had broken down. That is why I made the point earlier that it is important that nothing is subject to international arbitration.

That leaves us with a fourth option: a clear time limit—it would be difficult to arbitrate about that, as we would have reached the time limit or we would not—or an end date for the backstop, which can be obtained by a conditional interpretative declaration. That is what I am now talking about.

I am not sure that in these debates we have had, because of the short time limits that we have been given, anybody has had the time to go into the legal background to this, so it is important that we put it on the record. As far as I know, my understanding of international law is correct, but of course, we have the Minister and my hon. Friends here, and they can put their own viewpoint forward. At least we can get this debate on the record. Let me try to explain.

There is a long-established practice of countries making unilateral statements when they ratify a treaty clarifying how they interpret the wording of a particular aspect of the treaty. The United Kingdom can interpret the wording in the agreement that the backstop is

“intended to apply only temporarily”

as meaning it must have an end date. What else is temporary? It has an end date, so it must end after a specified period. Such a declaration would be subject to the same rules that are applicable to reservations—another term of art in international law—but would not be a reservation itself, as these cannot be applied to bilateral treaties. Even if the other three options were pursued, whether individually, sequentially or simultaneously, the conditional interpretative declaration would be useful to have on hand already if the first three options ceased to be viable, or if the EU would not negotiate on that basis.

As international law provides that the rules for declarations follow the rules for reservations, it is useful to consult the United Nations International Law Commission’s “Guide to Practice on Reservations to Treaties”. Guideline 1.2 defines an interpretative declaration as

“a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.”

A conditional interpretative declaration is a more forceful variant of this instrument of international diplomacy whereby the United Kingdom would assert that its consent to be bound by the withdrawal agreement is dependent upon the interpretation that the backstop has an end date.

Lest one think that interpretative declarations are just a back-door way of applying a reservation to a bilateral treaty, it should be clarified that their applicability is much less extensive than that of a reservation. Conditional interpretative declarations cannot negate any part of a treaty. That is a vital part of what I am arguing. I am not trying to negate any part of the withdrawal agreement.

These declarations can only constrain the meaning given to part of a treaty. A state’s declaration when ratifying a multilateral treaty does not stand in the way of that state remaining a party to the treaty. With a conditional interpretative declaration to a bilateral accord, the outright rejection of the declaration by other parties means the treaty would not come into force. I am going to go into this in more detail in a moment.

RAF Scampton and the Red Arrows

Debate between Jim Shannon and Edward Leigh

Tuesday 5th February 2019 Westminster Hall

[Sir Edward Leigh]

Obviously, we have to hear from the Minister about land values and regeneration, which is an important part of the debate.

In all our dealings with defence, we must learn that we need the flexibility to deal with changing situations and unexpected threats. That applies as much to keeping HMS Albion and HMS Bulwark, with their amphibious assault capabilities, which I am glad the Government have committed to continuing, as it does to keeping RAF Scampton open. The situation we are in today may change rapidly and we need the ability to respond to that effectively. So, too, may the threats we face. Relations between the UK and Russia, while far from war-like, are not quite friendly either. Russian aircraft test our air defences frequently, as NATO aircraft likewise test Russia’s. Scampton is not, of course, a frontline fighter base at the moment. It is not unimaginable that we would need to deal with a scenario in which things heat up over the North sea. As one of my constituents pointed out, if somehow RAF Coningsby was taken out of action, RAF Scampton could be very quickly converted into a frontline role with quick reaction alert capability. If the base is permanently shut and redeveloped, that option, and the flexibility it provides, is off the table. Obviously, if we lose a runway, it is lost.

There are strong economic worries, given the hit that the local secondary economy will take. We need to consider the needs of local enterprise and businesses that are involved directly or indirectly with RAF Scampton.

[Jim Shannon (Strangford) (DUP)]

I congratulate the right hon. Gentleman on securing this debate. I was blessed to visit RAF Scampton during my time in the Armed Forces Parliamentary Scheme and to see Vasco, who looked after us. My colleague, the hon. Member for Sleaford and North Hykeham (Dr Johnson) participated also. I noted the tremendous integration between the local community and the base, and the fact that many depend on the base for their livelihood. Does the right hon. Gentleman agree that that community must be a material consideration in any decision, and that the Ministry of Defence owes that community a duty of care that it must fulfil?

[Sir Edward Leigh]

As always, the hon. Gentleman makes a very valuable point. I entirely agree with him.

Let me mention Hawker Hunter Aviation. Its land and buildings are privately owned, but it fulfils contracts for the Ministry of Defence and its suppliers. Its business depends on the continuing existence of the airstrip at Scampton, which is far from guaranteed. If the base is redeveloped, we will also need to know what ground has been contaminated by defence use and what the cost of clean-up will be—a very important point. There are many stories to the effect that when the MOD re-routed the A15 to curve around the extended runway, it gave a guarantee that if the base was shut it would restore the original route of that ancient Roman road. Will the Minister comment on that point?

Talking of the Minister, I thank him personally for the gracious way in which he has tried to keep me informed at all times, including coming to my office two months before the decision was announced in public, with several of his officials, to explain what he was doing. I objected then to the closure, as he knows, and I keep objecting, but at least he has been very gracious in trying to keep us all informed. As we all know, he is a quite excellent Minister.

Of course, it is all very well for Ministers and civil servants to find savings—I encourage it—but I fear that they have made a decision to close RAF Scampton without being in full knowledge of the facts, and the changing facts.

Reduction of Plastic Waste in the Marine Environment

Debate between Jim Shannon and Edward Leigh

Wednesday 2nd May 2018 Westminster Hall

[Douglas Chapman]

I get the impression that the public are a step ahead of the Government and legislation. They are already prepared mentally and attitudinally to make the change. I spoke to our friends from Plastic Free Dunfermline, a group in my constituency that tries to make our town plastic-free. They talked about not applying levies or negative instruments on people, but being positive by encouraging retailers to provide water in the town’s shops, so that people can take a bottle and have it refilled at any point. Does the hon. Gentleman agree with such simple ideas?

[Sir Edward Leigh (in the Chair)]

Order. If we have too many interventions, not everybody will get in.

[Jim Shannon]

So that more people can get in, Sir Edward, I will not take extra time. I thank the hon. Gentleman for his intervention. I wholeheartedly support what he said.

Many people may knee-jerk react and resist, but we are not eco-warriors on the attack. We should be eco-educators coming alongside people, as that will be more successful. I look to the method of my local council with regard to those who persist in refusing to recycle: three strikes and your bin is not lifted. Then they know what they need to do. The gentle approach has meant that very few bins are not lifted, and people in the borough are coming to terms with recycling in a way that is not offensive but inclusive. That is the approach that the Government—I look to the Minister—should use. We have a duty of care to our environment, but also to help people understand. Our approach must reflect that.