There have been 8 exchanges between Nigel Dodds and Attorney General
|Fri 29th March 2019||United Kingdom’s Withdrawal from the European Union||9 interactions (266 words)|
|Tue 12th March 2019||Withdrawal Agreement: Legal Opinion||3 interactions (240 words)|
|Tue 19th February 2019||Northern Ireland Backstop||3 interactions (168 words)|
|Tue 15th January 2019||European Union (Withdrawal) Act||7 interactions (163 words)|
|Mon 3rd December 2018||Withdrawal Agreement: Legal Position||9 interactions (288 words)|
|Thu 29th November 2018||Withdrawal Agreement: Legal Advice||3 interactions (76 words)|
|Tue 13th November 2018||EU Withdrawal Agreement: Legal Advice||3 interactions (47 words)|
|Wed 13th June 2018||European Union (Withdrawal) Bill||3 interactions (186 words)|
I know that, and I have heard it, but so has the DUP.
I simply say this before giving way to the right hon. Gentleman. The reality is that DUP Members sit in this House having been elected on a proposition. This issue is all about democratic decision making. It is about the honesty with which we approach it. It is to do with the trust inherent in our taking the instructions of the British people in accordance with the sovereign referendum Act.
I agree with every word that the right hon. Gentleman said. That is true. It is not good enough to talk about our precious Union and then to damage it. It is not good enough to say that we will not truly leave the European Union unless we regain control over our laws, which the Prime Minister said in the Lancaster House speech, and then for us to arrive at a point where we are politically castrated, precisely because for a number of years we will be put at the mercy of our competitors—for example, in relation to state aid. That is the key issue. It is not just the question of sovereignty in its own right; it is the practical impact.
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There is a degree of latitude on these occasions, but the hon. Lady has stretched it excessively. If she had wanted to speak in the debate, she might well have caught my eye, but she did not seek to do so.
No unilateral declaration is worth the paper it is written on if it is objected to. My understanding is that it is not objected to and that it will be deposited alongside the withdrawal agreement and, therefore, will carry legal weight under article 31 of the Vienna convention.
I am extremely grateful to the right hon. Gentleman for his question, which I will deal with point by point. First, my opinion has changed in connection to this country’s ability to prove bad faith if it occurred. There is now a new contextual framework for judging whether the other party is using best endeavours or good faith.
Time has been made of the essence in specific connection to negotiating alternative arrangements. A specific work track and a specific timetable are set out, and it would be unconscionable, as I say in my opinion—I forget the paragraph, but the right hon. Gentleman will have it—if having said to this country that it will set up a specific, discrete work track on alternative arrangements, which are defined in this new document as meaning facilitative techniques, technologies and customs procedures, and if having set up a timeline for negotiating those alternative arrangements by saying “12 months, or we must intensify our efforts,” it never agreed to use a single one, and if it refused every proposal reasonably adjusted to its core interests. That would be extraordinary.
I say in my written opinion, and I stand by it, that it would be a potential breach of best endeavours and good faith. Best endeavours are now defined in this joint instrument as requiring the EU to consider adverse interests and matters that are adverse to its interests. Even if these facilitative technological and customs measures were adverse to the EU’s interests, the duty still requires it to consider them. Therefore if there were a pattern of refusal, a systematic refusal, to consider these alternative arrangements, we would have a case before the arbitration panel, and it would be a potentially serious breach of good faith.
I say to the right hon. Gentleman with all candour that I believe that, and he knows I would not say it if I did not mean it. It is there in my written opinion, and I urge him to consider it.
My right hon. Friend referred to a newspaper report on which it would be ill-advised for me to comment. Let me say this generally about our civil servants: whatever their role, position or views, they are in a singularly difficult position in that they cannot answer back.
The right hon. Gentleman is absolutely right in his call for everybody to cool it and to calm down when it comes to important issues such as the Irish border. I am not going to make comments about members of friendly Governments, but I will say that this is a time for calm heads rather than hot ones.
Let me say straightaway, as my letter says, that these assurances, in my view, make a difference to the political question that each of us has to take, but, as I said in the letter, they do not affect the legal equation.
First, let me say to my right hon. Friend, the legal equation remains the same. The assurances are binding in the sense that, in international law, they would be a legally binding interpretative tool. What they do not do is alter the fundamental meaning of the provisions of the withdrawal agreement. In that respect, he is right.
I need to come to the first point that I want to make to the House. Let us examine the rest of the agreement. Do we have—
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I set out the Government’s position in detail in my statement yesterday, so I am not going to go over it again. The key thing to remember is that this is not a commitment we are making to the European Union; it is a commitment to the people of Northern Ireland and Ireland that they will be able to carry on living their lives as they do today. It is about saying that, whatever happens when we leave the EU, we will honour the Belfast agreement.
The Belfast agreement’s success has been built on allowing people from both communities in Northern Ireland to feel that their identities are respected under the principle of consent. For many people in Northern Ireland that means having a seamless land border between the UK and Ireland, which is also essential for their economy. For others, it means fully respecting the fact that Northern Ireland is an intrinsic part of the United Kingdom. No one wants to see the return of a hard border. As a proud Unionist, I share the concerns of Members who are determined that we do not undermine the strength of our United Kingdom, but it is not enough simply to make these assertions. We have to put in place arrangements that deliver those ends, and it is not as simple as some would like it to be.
As Prime Minister for the whole UK, it is my duty to provide a solution that works for the people of Northern Ireland. The answer lies in agreeing our future economic relationship, but we need an insurance policy to guarantee that there will be no hard border if that future relationship is not in place by the end of the implementation period.
Everybody in this House is committed to ensuring that we maintain the arrangements of the Belfast/Good Friday agreement and that we maintain the many benefits that have come from the peace process in Northern Ireland. That should not be disrupted or affected in any sense.
Whatever future relationship is negotiated, or that people want to see negotiated, the insurance policy is essential. All of the other proposals—Canada, Norway or any number of variations on those models—require the insurance policy, which is the so-called backstop. No backstop simply means no deal, now and for the foreseeable future. I do not want to see anybody being able to exploit no deal, and bringing doubt about the future of our Union as a result.
Let us remember what the withdrawal agreement delivers for the people of Northern Ireland: an implementation period—certainty for businesses; protection of citizens’ rights—certainty for thousands of families; no hard border—unfettered access to British and EU markets; protection of the single electricity market across the island of Ireland, securing energy supply in Northern Ireland; continued security co-operation with our European allies, which the Police Service of Northern Ireland says is essential; and, above all, the protection of the historic Belfast/Good Friday agreement. The deal we have puts our Union first.
The Leader of the Opposition’s speech is characteristic of his whole approach to Brexit: long on criticism and short on coherence. He claims that he will be able to renegotiate the deal in a matter of weeks and get a drastically different outcome, despite the European Union making it clear that that is impossible. Everything he does is designed to avoid taking any difficult decisions. He says one thing to one group and another thing to another group. His general election manifesto said that freedom of movement will end; on Sunday he said:
“I am not against the free movement of people.”
When asked about Brexit by a German newspaper, he said that we cannot stop it, that the referendum took place and that article 50 has been triggered; in his speech at Wakefield last week, and again this evening, he said that a second referendum is an option on the table. He says that Labour would run an independent trade policy, but he wants to join the customs union. He says he is opposed to no deal, but he also says he is opposed to the withdrawal agreement and the backstop, without which there is no deal. The question is: what is his position? He has failed in his responsibility to provide a credible alternative to the Government of the day. By pursuing from the start a cynical course designed to serve his own political interest, not the national interest, he has forfeited the right to command loyalty from those of his MPs who take a more pragmatic view. He does not care whether we leave or not, with a deal or not, as long as he can maximise disruption and uncertainty and the likelihood of a general election.
I hope that Labour Members who faithfully pledged to their constituents that they would respect the result of the referendum think carefully before voting against a deal that delivers Brexit, and I hope that those who fear leaving without a deal whose constituents rely on manufacturing jobs think very carefully before rejecting a deal that is the only guaranteed way to take no deal off the table.
This is the most significant vote that any of us will ever be part of in our political careers. After all the debate, all the disagreement and all the division, the time has come for all of us in the House to make a decision—a decision that will define our country for decades to come, a decision that will determine the future for our constituents, their children and their grandchildren, a decision that each of us will have to justify and live with for many years to come.
We know the consequences of voting for the deal—they are laid out in black and white in the pages of the withdrawal agreement—but no one who votes against the deal will be able to tell their constituents what real-world outcome they voted for, because a vote against the deal is a vote for nothing more than uncertainty, division and the very real risk of no deal.
The duty of good faith and to use best endeavours is a legally enforceable duty. There is no doubt that it is difficult to prove—[Interruption]—as I hear from a sedentary position, but that is not to say that it has not been proven. The case reports of the International Court of Justice, as well as arbitral tribunals throughout the world, have recorded decisions where tribunals have found breaches of good faith duties. There would need to be clear and convincing evidence that the breakdown of communication was due to bad faith—I fully accept that—but if the EU refused to engage with us, strung out negotiations in a thoroughly unreasonable way or failed to observe reasonable time limits, those would be hallmarks of a possible case of breach of good faith. It is a meaningful legal obligation.
I remind the House that we are dealing here with the United Kingdom on one hand and the European Union on the other. Their reputations in international forums, and their reputations as a question of international law, are at stake. If you put your name to a solemn legal obligation to negotiate something in good faith within a certain time limit, it is a very serious obligation of which to acquit yourself: it cannot just be played fast and loose with.
The right hon. Gentleman has thrown down the gauntlet in asking me to re-examine my support for the agreement. I do not mind confessing to him that I have wrestled with this question, because I am a Unionist and dislike any divergence between Northern Ireland and the rest of the United Kingdom; but I have had also to take into account first that this is an arrangement that we can avoid, and secondly that if we were in it, it would be as much an instrument of pain to the European Union as it would be to the United Kingdom.
I ask the right hon. Gentleman to think of what the European Union is now accepting. It accepts that Northern Ireland can have free circulation of its goods not only into the single market, but to Great Britain. No other single market trader will have that advantage. Hundreds of single market traders throughout the European Union are going to resent the fact that the goods of a Northern Ireland business situated one mile north of the border can flow smoothly into the single market and smoothly into Great Britain, while theirs cannot. So there are real reasons, which the right hon. Gentleman and I can discuss at greater length, why I do not believe that this will become a permanent solution.
Let us suppose, however, that those negotiations broke down, or took an unreasonable length of time. All around the European Union there will be single market traders seeing the benefits that Northern Ireland can have, who will be induced by those benefits to ask, “Should we go on putting up with this uncompetitive arrangement?” And what are they likely to do? Why, they are likely to beat a path to the door of the Commission and the Court, and there to say, “Didn’t you say that article 50 is not a sound legal foundation for this arrangement?” And I tell you frankly, Mr Speaker, they are likely to win.
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The European Union’s original proposal, as the hon. Gentleman will know, was that Northern Ireland should reside in an entirely separate customs territory. The Government took the view that that was wholly and completely unacceptable. Why? Because there is virtually no sovereign state in the world that has separate customs and fiscal tariffs within its own sovereign territory. But there are many nations throughout the world in which different provinces and parts have regulatory divergence. The regulatory divergence in this case can be minimised to an almost, if not wholly, invisible extent. Furthermore, we do not wish, nor expect, to be in this arrangement. Under article 132 we can extend the implementation period, and if we are close to doing a deal, or even reasonably close, no doubt that is a choice that we will have to consider.
I say to hon. Members that I understand entirely their feelings of concern, even distaste, but this is a question affecting the whole of the United Kingdom and its interests. So vital is the fact that we should have an orderly exit from the European Union that, as people who hold the United Kingdom’s Union at their heart, I would urge them to consider supporting this agreement, for it is our means out of the European Union.
It is a means out of the European Union. The limited extent to which Northern Ireland would remain relates to goods only.
My hon. Friend is right to emphasise the national interest. It is rare for a Law Officer, in this case the Attorney General, to come to the House and make a statement of this nature. We accept that these are exceptionally important, unusual and unprecedented times. That is why he is doing it. Members will have the chance to grill him when he comes.
May I assure the right hon. Gentleman that when the Attorney General comes here on Monday, he will be able to ask him questions and make sure he is properly examined on these issues? He will have that opportunity. This is not an instance where the Government seek to delay or hide; this is all about providing information at the right time ahead of the important debate that I know he will be playing an important part in.
I beg to move,
That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
I will go into the details of the argument in just a moment, but may I first attempt to set out the context for today’s debate? Last December, the Government signed the joint report—the phase 1 agreement. It contained a number of important points, including, of course, in relation to Northern Ireland. I remind the House that the phase 1 agreement committed us, first, to maintaining the north-south co-operation provided by the Good Friday agreement; and, secondly, to avoiding a hard border, including any physical infrastructure or related checks and controls in Northern Ireland. Those, of course, are commitments that will apply “in all circumstances”. The idea is for a legally binding backstop to kick in
“In the absence of agreed solutions”.
That was the commitment made, and I know the Government are solemnly committed to it.
It did. A number of other important commitments were made in that agreement, but I am focusing for the moment on the two that relate to the Northern Ireland border. Since then—and it has been 11 months—a number of options have been mooted to meet that commitment. First, the EU proposed a Northern Ireland- specific backstop earlier in the year. The Prime Minister was right to point out the threats that that posed to the UK. Then, the EU proposed a UK-wide backstop, certainly in so far as a customs arrangement or union is concerned, but that runs into the problem that the EU wants an insurance measure that applies until something equally robust replaces it, whereas the UK wants a provision for unilateral withdrawal—and so that got stuck. A third option has been proposed, which is a UK-wide backstop of some sort, with unilateral withdrawal but with a Northern Ireland-specific backstop as a backstop to the backstop. After 11 months, this is unresolved.
I am not going to stand here and pretend that any of this is easy, because it is not—these are complicated negotiations and very serious commitments—but I am sure I am not the only one in this House who feels as though we have lived and re-lived the same week over and over again in the past few months. We begin the week being told, “There is going to be a deal. Cabinet meetings are scheduled. Dates are due—votes are being held in Parliament; there will be emergency summits in Brussels.” By the end of the week we are told, “Next week is decision time.” We have been going around that circuit for some time, and this can go on for only so long. The important point is this: if a deal is reached, it is proposed that the backstop will be legally binding as part of the withdrawal agreement. So it is in the legally binding part of the agreement, not the political declaration. That is a very important provision. Under section 13 of the European Union (Withdrawal) Act 2018, this House will of course be asked to approve that withdrawal agreement, or not approve it, so there is a special statutory process for this House that everybody in this House is well aware of.
On 17 October, it was reported that the Attorney General had been asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. I pause here to identify and emphasise what it is that the Attorney General has been asked to do: to provide a full assessment of the legal ramifications of the backstop. That is important for later, when I shall get into questions of privilege and non-disclosure.
I entirely agree. The Government’s policy is to achieve a deal, because we are mindful of the points the hon. Gentleman and others understand.
The right hon. Gentleman is absolutely right. I am surprised that there can be that level of divergence on what is a most important point. He makes the vital assertion, which I think is right, that the important amendments considered yesterday, which were outlined very carefully, relate to the powers in the Bill and how the Bill will operate. Of course they are consistent with Government policy, and there is absolutely no question but that their terms are entirely consistent with what the British Government want to achieve. It is important to note, however, that they relate to the powers in the Bill: a correcting power, the withdrawal agreement power, consequential powers and transitional powers.