Legal Advice: Prorogation

Debate between Geoffrey Cox and Hilary Benn

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I know that my right hon. and learned Friend will understand that it is not right for the Attorney General or any Cabinet Minister to comment on leaks of matters that occurred within Cabinet, be they accurate or inaccurate—it would set a wholly undesirable precedent—but let me say this. It was being mooted some weeks ago that Parliament might be prorogued from the beginning of September or even earlier until 31 October. I say straightaway to him that if that had been the proposition, I could not have stayed in the Cabinet while it was done.

[Hilary Benn (Leeds Central) (Lab)]

Does the Attorney General believe that yesterday’s judgment of the Supreme Court represented a constitutional coup, and if he does not share that view, could he explain why he thinks it is wrong?

[The Attorney General]

I do not think that it was a constitutional coup. I know the right hon. Gentleman will know that I do not, and I do not believe that anybody does. These things can be said in the heat of rhetorical and poetical licence, but this was a judgment of the Supreme Court of a kind that was clear and definitive. It often happens that Governments lose cases. We did not agree with it, because of course we argued against it, but we accept the ruling of the Supreme Court, and we are proud that we have a country that is capable of giving independent judgments of this kind.

United Kingdom’s Withdrawal from the European Union

Debate between Geoffrey Cox and Hilary Benn

Friday 29th March 2019 Commons Chamber

[The Attorney General]

As the motion notes, this is not purporting to be a section 13(1) vote. This is simply designed to afford the House the chance of taking advantage of the legal right established by the Council decision. It is not a vote under section 13. There is nothing unlawful and certainly nothing procedurally improper about it. It is done to afford the House this chance.

[Hilary Benn (Leeds Central) (Lab)]

I am grateful to the Attorney General for giving way. I want to ask him about the consequences for any further extension of this motion passing today. If we get until 22 May but in the week leading up to that it becomes clear that we have still not reached agreement on a political declaration, and if we ask the EU for a further extension, is it not likely to say, “I’m sorry—you can’t have one because you did not take part in the European Parliament elections”? Therefore, defeating this motion today will at least give us the chance to make that choice with an extension until 12 April, when we could get a longer extension. We could not get that if we go to 22 May.

[The Attorney General]

I understand the right hon. Gentleman’s point. I say straightaway that the answer is that this is the only right we have to an extension. If we move into next week without securing it, we take the chance that among those 27 leaders there will be vetoes.

The right hon. Gentleman asks me about European parliamentary elections. Plainly, the stated position of the European Union is that we would have to organise and stand in those elections if we went beyond 23 May. Some lawyers, of course, disagree with that stated position and say that it would not be necessary, but that is the stated position of the Union. The point, however, is that we have the opportunity here to embrace certainty.

What the right hon. Gentleman’s prescription would have us do is take a chance on the good will of the 27 member states of the European Union granting us another extension. The withdrawal agreement—everyone knows; the right hon. Gentleman knows—is an essential prerequisite for our departure from the European Union. That may be why he does not want to vote for it. The official Labour position is that it does not disagree or object to a clause or article of the withdrawal agreement. The country looking on must judge this. The Opposition do not object; they have not emitted a peep of disagreement with a single clause or article of that agreement, and their position today is that they intend to vote it down. What kind of cynicism is that?

The opportunity now is for us to embrace the certain legal right of an extension to 22 May. That will give us the opportunity to give certainty to the country and allow the process of reconsideration of the political declaration to take place.

--- Later in debate ---

[The Attorney General]

Will the right hon. Gentleman tell the House how, compliant with the Speaker’s ruling, he would have brought a vote that fulfilled the conditions he has just set out?

[Hilary Benn]

I will readily tell the House—although I will come to this very point later in my speech: the Government could choose, if they wished to, to seek to change the political declaration with the EU. It is because of the Government’s consistent failure to do that, because of its consistent failure to reach out across the House, that they find themselves in the difficulty they have created today. But I shall return to that point a little later.

We cannot separate the withdrawal agreement from the political declaration because both parts are essential to the process. It is like selling your house without having any idea where you are going to live afterwards. We would not have the withdrawal agreement without the political declaration. Article 50(2) refers to

“setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”

My hon. Friend the shadow Solicitor General in his brilliant speech quoted the Prime Minister’s the statement on 14 January. I will repeat one small bit of it. She said:

“One cannot be banked”—

referring to the withdrawal agreement and the political declaration—

without the commitments of the other.”—[Official Report, 14 January 2019; Vol. 652, c. 826.]

Yet the motion before the House today explicitly tries to bank the commitments of one without the commitments of the other. I do not see how that can in any way be consistent with what the Prime Minister told the House of Commons on 14 January.

The second reason why I shall vote against the motion is one of the consequences of passing this motion. The aim—the Attorney-General was frank about it—is to gain an extension to 22 May rather than 12 April by satisfying the requirement of article 1 of the European Council decision of 22 March, which stated:

“In the event that the withdrawal agreement is approved by the House of Commons by 29 March 2019 at the latest, the period provided for in article 50(3) of the Treaty of European Union is extended until 22 May 2019.”

The problem, and my intervention on the Attorney General was trying to address this, is that if we passed this motion and got that extension, by the time we got to the week beginning 20 May, if at that moment we have not yet resolved the question of our future political and economic relationship and the UK decided that it needed to apply for a further extension, the EU is almost certain to refuse any such extension on the grounds that we have failed to take part in the European elections. That is because paragraph 10 of the decision of the European Council, which said:

“If the United Kingdom is still a member state on the 23-26 May 2019”—

which we would be if we asked for and were granted an extension beyond 22 May—

“it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections.”

Since it would be impossible on 20 May to give notice to hold elections on 23 May, it would be impossible to comply with this requirement. Therefore, what the motion before the House today means is that, if it were carried, it would in effect rule out any possibility of a further extension under article 50 beyond 22 May. So if, at that point, we have not reached agreement on the withdrawal agreement and the political declaration, this motion would mean the UK leaving without a deal on 22 May. The House voted this week by 400 votes to 160 to reject for the third time leaving with no deal. The only other way forward would be to revoke article 50 to buy ourselves a little bit more time, but the Prime Minister has repeatedly told the House that she would refuse to do so.

[Hilary Benn]

That would indeed be the consequence if the motion were passed. I will be perfectly frank with the hon. Gentleman. If there were a way round the problem of participation in the European elections, I think many people in the House would seek to find it, but it is clear that the EU in the form of the Commission and the Council and the legal advice has said that that is not possible, and therefore, in effect this is a no-deal motion.

[The Attorney General]

indicated dissent.

[Hilary Benn]

It is, and for that reason alone it deserves to be defeated.

The last point I want to make is that this Bill is displacement activity on the part of the Government. The Government should be turning their effort and attention to the real issue, which is our future relationship.

[Hilary Benn]

I reciprocate the respect for the Minister, who is doing a very good job, I have to say, in extremely difficult and trying circumstances. But this is half an agreement.

[The Attorney General]

indicated dissent.

[Hilary Benn]

It is. Half an agreement is being presented to the House. The Government should be focusing all their attention on the real problem, on this side of the House, which is the content, or to be more precise the lack of content, of the political declaration.

Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Hilary Benn

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.

[Hilary Benn (Leeds Central) (Lab)]

Can the Attorney General confirm that in order to get to the point at which the UK might be able to suspend the Northern Ireland protocol, it would have to, first, persuade the arbitration panel to agree with its case and, secondly, accept that any issue of EU law arising from the case that the UK had argued would have to be referred to the Court of Justice of the European Union and that any ruling of the CJEU on that matter would be binding on the panel, the EU and, most importantly for this discussion, the UK?

[The Attorney General]

Of course I can confirm all those things, which are self-evident in the agreement. May I just point out to the right hon. Gentleman that although I am sure it is a clever forensic point, the circumstance in which a point of European Union law would arise in connection with the best endeavours and bad faith clauses is difficult to envisage? The reality is that it is a straightforward question of fact: is the European Union moving with the urgency and pace, to the procedural timetables and according to the procedural steps that this agreement now enforces?

The right hon. Gentleman is an honest politician, and he cannot look these things in the face and say that they mean nothing. These are important amplifications and clarifications of the duty of best endeavours. I quite agree with him, as I very much doubt we would ever get to an arbitral tribunal, because what these duties, new clarifications and amplifications do is set the framework for people’s conduct within the negotiation. It is about the impact on their behaviour and conduct. Very rare is the case in which one would get to an arbitral tribunal. What matters is the framework of obligations and responsibilities, and those have materially tightened on the European Union.

Oral Answers to Questions

Debate between Geoffrey Cox and Hilary Benn

Thursday 7th March 2019 Commons Chamber

[The Attorney General]

The hon. Gentleman may be right. There are many lawyers who are eminently capable of deciding whether I have got my judgment right or wrong.

[Hilary Benn (Leeds Central) (Lab)]

Article 175 of the withdrawal agreement which, as the Attorney General knows, deals with resolving disputes about the interpretation of the agreement, states that rulings of the arbitration panel shall be binding on the EU and the UK. In his letter to the Prime Minister of 13 November, the Attorney General stated that although the withdrawal agreement does not

“expressly state”

that the backstop review mechanism

“is intended to be arbitrable…I consider that the better view is that it is.”

In his recent discussions with the EU, has it confirmed that it shares that better view—in which case, why would one need to consider another separate arbitration mechanism for dealing with the backstop? Or has the EU said that it does not regard binding arbitration as applying to the backstop itself?

[The Attorney General]

That is a question I would have expected from such a sophisticated Select Committee Chair. The problem is that although the arbitration system applies to the protocol, the question that one asks the arbitrator is at the heart of the effectiveness of any arbitration. Although I am not at this stage able to disclose to the right hon. Gentleman the question that has been proposed by the United Kingdom to the Commission, the question is everything. He may very well need to take that into account, because the question about when the protocol would end is likely to be determinative of whether the mechanism is effective.

European Union (Withdrawal) Act

Debate between Geoffrey Cox and Hilary Benn

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

Well, of course I would have been infinitely happier if the European Union had not laid down as one of its cardinal negotiating points and principles that there should be a backstop, but it has done that. On the basis of its own guidance to its own negotiating principles, it would have been a demand that it always sought, and we are faced with the position as it now is.

If we take this step of entering this withdrawal agreement, we will then enter a stage where we are to negotiate the second key to unlock our future outside the European Union. What I am commending to the House is that we take this key and we unlock the door to that first chamber—that airlock where we can then settle the permanent relationship that is set out in the political declaration.

[Hilary Benn (Leeds Central) (Lab)]

The Attorney General’s use of the airlock analogy is very striking, but does he realise that the reason many of us will vote against the deal tonight is that on the other side of the second airlock is a complete vacuum about our future relationship with our biggest, nearest and most important trading partner?

[The Attorney General]

I intend to address the very point that the right hon. Gentleman raises, because it is important to distinguish between the withdrawal agreement and the political declaration and the permanent treaties in which the long-term relationship between this country and the European Union will be settled. The political declaration sets the boundaries within which those permanent arrangements will be negotiated. The aims of the withdrawal agreement are to settle the outstanding issues that our departure creates. These are two separate and, importantly, distinguishable functions.

The withdrawal agreement commands across the House, I would submit, with the exception of two areas—the backstop and the political declaration—widespread consensus as to its necessity and its wisdom.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Hilary Benn

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I am grateful to my right hon. and learned Friend. He will understand that if I were to make that express confirmation, I would by that means be disclosing what advice, if any, I had given. I hope that the House will understand—unless it is to be supposed that I would tailor my advice according to my audience, which I assure the House I would not do—that there is no matter on which hon. Members could ask me a question on which I am likely to have given a different answer to any other party who might have asked me about it in the course of these negotiations. In all candour, therefore, I can say that all the House has to do is ask.

In relation to my right hon. and learned Friend’s second question, it is true that there would be regulatory divergences—as there are within sovereign states throughout the world—between one part of the sovereign territory of the United Kingdom and another, but those divergences could be kept to a minimum. They involve, on my investigation, some 15 forms of product in respect of which checks might have to be carried out at the border. Those 15 forms of product are largely phytosanitary goods in respect of which checks are already carried out in many cases at the ports of Northern Ireland. Therefore, while that border would exist—I find that distasteful myself—the issues are nevertheless mitigable, and the question again is whether that feature should lead us to decline this deal, which I firmly believe is the best way of ensuring that we leave the European Union on 29 March. That is the solemn responsibility that this side of the House—and some on the Opposition side—believed that we had. This is the deal that will ensure that that happens in an orderly way and with legal certainty.

[Hilary Benn (Leeds Central) (Lab)]

I say to the right hon. and learned Gentleman that there is something to see here. If the Government can decide which votes of the House of Commons to respect and which to ignore—as you said when ruling on a point of order on 13 November, Mr Speaker, it was not the opinion of the House of Commons that it wanted the full legal advice to be released, but the will—what does democracy mean in this place?

Now, I have a question for the Attorney General on which I want his legal advice. As he will be aware, the withdrawal agreement is legally binding, but the political declaration is not. Can he draw to the House’s attention a single example in international law of when a failure to act in good faith has successfully compelled one party in a negotiation to reach an agreement as extensive as the one that the Government hope to achieve and that is set out in the political declaration covering trade in goods and services, security, foreign policy, broadcasting, data and co-operation on a wide range of matters? If there is such an example, I would very much like to hear about it.

[The Attorney General]

The right hon. Gentleman points out that we are in a unique situation. There has never been a case in which a country has seceded from the European Union, and there has never been a case in which 45 years of legal integration of a state the size of the United Kingdom has been untangled. That will take time, and it must be done in an orderly way. I will write to the right hon. Gentleman if there are any specific examples to assist me, but the fact of the matter is that I doubt it, which is the frank answer, because we are in this extraordinary and unique situation.

To address the first part of the right hon. Gentleman’s question, I will repeat myself: what does he expect us to do? When he was a member of the Cabinet, if he believed that to take an action would be fundamentally contrary to the public interest of this country, I suspect that he would find that a difficult situation to resolve. The House’s resolution is entitled to the greatest of respect, and the Government and I are inclined to do as much as we can and to go as far as we can, which is why I have come to the House today—it has barely happened more than a few times in the past 50 or so years—to answer the House’s questions. However, I cannot take a step that I believe in conscience would be against the public interest and potentially seriously harmful to a fundamental constitutional principle and the temporal interests of this country in the midst of a negotiation.