Geoffrey Cox opens the final day of the debate on the meaningful vote on the Prime Minister's withdrawal agreement.
I invite the Attorney General, Sir Geoffrey Cox, to open today's debate.
I am extremely obliged to you for promoting me, Mr Speaker. Perhaps I can take that as a hint to my right hon. Friend the Prime Minister.
That was of course always part of the intention.
I will suggest the next office you could perhaps promote me to, Mr Speaker.
I am more than conscious that last time I had a prolonged outing in this House the verdict did not go well. [Laughter.]On this occasion, I intend, if I may, to ​adopt an approach that I hope will be more to the House's taste. I want to listen to the House's views, and I shall be as accommodating as possible to the interventions of Members of this House, knowing as I do that many of them have very strong views upon this subject.
I have listened with care to the speeches of Members of this House during the course of last week's proceedings, and I have been struck by the heartfelt and eloquent expressions of principled opinion that hon. Members have made. I was particularly struck, though I do not think he is in his place this morning, by the speech late last night—I commend you, Mr Speaker, and those who remained here until after 1 o'clock in the morning to complete yesterday's proceedings—by the hon. Member for Gedling (Vernon Coaker). He waited, I think, until midnight or shortly thereafter to begin his speech, and made the most passionate appeal to Members of this House to understand the value of compromise. He told the House that the membership of this place confers on us not only the great privilege of participation in the Government but the responsibilities that go with it.
In the past, when this country has faced these kinds of grave obstacles and impediments to finding a way forward, Members of this place have found the resource within themselves to achieve a compromise and to subordinate their ideal preference—the solution that they would like to see—to that which commands a degree of consensus. It is precisely for that reason that I support the withdrawal agreement—not because I like every element of it but for wholly pragmatic reasons: it is the necessary means to secure our orderly departure and unlock our future outside the European Union.
Since 23 June 2016, we have been on a road that has led us ineluctably to this point. One after another, this House has taken the steps, often by overwhelming majorities, necessary to bring us to the brink of departure, and there are now but two steps to take. The first is this withdrawal agreement. It is the first of the two keys that will unlock our future outside the European Union. It is sometimes said in various circles, I understand, Mr Speaker, that if you are moving from one pressurised atmosphere or environment to another, it is necessary to have an airlock. This withdrawal agreement is the first key that will unlock the airlock and take us into the next stage, where the second key will be the permanent relationship treaty.
I appreciate the point that the Attorney General has made with regard to the value of compromise. Anyone involved in any significant negotiation knows that compromise, and the timing of it, is absolutely essential. Is he aware of the most recent comments by the retired former Irish ambassador to the EU, a man who worked on behalf of the Republic of Ireland on the Belfast agreement, who said in The Sunday Business Post: "We"—the Irish Government—"were wrong to insist on the backstop—and softening our stance is the only way to prevent 'no deal'"? Is the Attorney General pushing for that outcome?
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.
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?
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.
Might I draw the Attorney General's attention to amendment (n) in my name, which calls on him to be a servant of the House and give his legal judgment on whether undertakings about the backstop and our ability to limit it are binding in law, and therefore actionable in law, internationally? Might he draw our attention to the letter he wrote in consequence—maybe in consequence—to the Prime Minister saying that we actually had that legal basis from the Council's conclusions on 13 December?
The right hon. Gentleman is of course right to say that I published that letter in the spirit of the conversation I had with him—in the spirit of the Government's desire to make clear as much information as this House needs to make its judgments.
On the backstop, can the Attorney General confirm that fish from Northern Ireland will have tariff-free access into the EU and tariff-free access back to the UK, but fish from Scotland will be subject to tariffs going into the EU, and that therefore Northern Ireland is going to be treated differently from Scotland in the backstop? The Scottish Secretary talked about responsibilities. He said that he would resign if Northern Ireland were given different conditions from Scotland. Is that not the case, and should not the Scottish Secretary consider his position?
Will the Attorney General give way?
I am willing to discuss it with the hon. Gentleman later.
Order. The hon. Member for Kilmarnock and Loudoun (Alan Brown) is rather excitable today. The Attorney General yields to none in his courtesy in the House, but it is not reasonable to expect of him, even with his formidable intellect, the capacity to try to respond to an intervention that he has not heard when he is dealing with one that he has.
I am happy to discuss the matter with the hon. Gentleman afterwards if he wishes.
Does my right hon. and learned Friend agree that the non-selection of the amendment in my name and the amendment in the name of my hon. Friend the Member for South West Wiltshire (Dr Murrison), the Chairman of the Northern Ireland Affairs Committee, makes harder the Government's challenge this afternoon to convince those of us who are still concerned about the implications of the backstop? What does he think can replace those two amendments?
I am grateful to my right hon. Friend for his question. I have never underestimated the challenge that I face today or the one that the Government face. As I shall come on to say in due course, I have reflected deeply, as he knows, upon the question of the backstop. I have reached the conclusion that it is a risk that it is acceptable to take, even having regard to the perils that it involves if it were to become permanent and the questions that it unquestionably raises in connection with the Union with Northern Ireland.
Will the Attorney General confirm that, while the political declaration is aspirational in style, it is not legally binding in international law, but the withdrawal agreement, as a draft international treaty, would be fully binding in international law? Will he also confirm that he is offering the House an embarrassment of riches? After months of debating the backstop, we now have the airlock as well. Are the Government so desperate that they are now offering the House of Commons a buy-one-get-one-free?
My right hon. Friend knows what I mean. The airlock metaphor is indicated to demonstrate the distinction that exists. The withdrawal agreement has been negotiated over thousands of hours and is, as he rightly says, the legally binding text and the only legally binding text. It was only ever empowered under article 50 to deal with historic issues and outstanding matters that otherwise would have catapulted citizens, businesses and Governments into legal uncertainty.
I want to make a bit of progress, because it is important to look at what the withdrawal agreement does.
We should not underestimate the legal complexity of our disentanglement from 45 years of legal integration. It has taken two years and thousands of hours of detailed and arduous negotiation, some of it highly technical, to produce 585 pages of the most minute consideration of the possibilities that no deal would create in legal terms for the millions of people who depend upon the certainty of the legal system and rules to which we have hitherto been subject. It provides for the orderly, predictable and legally certain winding down of our obligations and involvement in the legal systems of the EU. If we do not legislate for that legal certainty, as a matter of law alone, thousands of contracts, transactions, administrative proceedings and judicial proceedings in the European Union and this country will be plunged into legal uncertainty.
I will give way in a moment. I intend to take many interventions in the course of this speech.
We are playing with people's lives. We are debating the effects of legal continuity. Forty-five years of legal integration have brought our two legal systems into a situation where they are organically linked. To appeal to those who have a medical background, it is the same as if we were to separate from a living organism, with all its arteries and veins, a living organ—a central part from this body politic. We cannot underestimate the complexity of what we are embarked upon doing.
I cannot resist giving way to the hon. Gentleman.
The Attorney General, as per usual, is addressing the House with a remarkable combination of the intellect of Einstein and the eloquence of Demosthenes. We are all enjoying it enormously— [Interruption.] Well, I am certainly enjoying it, but I hope he will not cavil if I gently remind him that 71 Members wish to contribute. I know he will tailor his contribution to take account of that important fact.
The Attorney General is making a good point, which a lot of us agree with—legal uncertainty is the worst possible outcome. That is why some of us are so angry that the vote was taken away from us in December. There is not a single chance of the Government getting the necessary legislation through by 29 March, even if the Attorney General were to get his way today. ​Can he confirm that if the vote is not won tonight, the Government will have to defer leaving the European Union on 29 March?
The hon. Gentleman knows the affection that I hold for him. It is not "my way". I understand the heartfelt, passionate and sincere views held on both sides. I listened all last night to the speeches from Members on the Opposition and Government Benches. We must come together now, as mature legislators, to ask ourselves: what are the fundamental objections, if there are any, to this withdrawal agreement? Whether or not it can be done by 29 March does not affect the decision we have to take today, which is: do we opt for order, or do we choose chaos?
The Attorney General admitted that there are two problems with the deal. It is a bit like a yachtsman who, when seeing his yacht on the rocks, says, "That anchor chain was great. Only two links were bad." That is what he is giving the House. It is a disaster, and well he knows it. My second point is that he misunderstood the point made by my hon. Friend the Member for Kilmarnock and Loudoun (Alan Brown). He was not talking about fish being caught, but fish as a commodity once caught. If it is landed in Northern Ireland, it is in a more advantaged position for export to Europe than fish caught and then landed in Scotland for export to Europe. He should recognise that and be straight with my hon. Friend, which I am sure he was trying to be, but he misunderstood the point.
I wonder whether I might take the intervention of the hon. and learned Lady.
Order. In terms of good form, it is the norm for the Minister occupying the Bench or the Member making the speech to offer some response before taking a further intervention. It may be a perfunctory response, but that is the norm.
When it is caught and then sold.
I would need to examine the issue. I am not certain the hon. Gentleman is right but, again, I have offered to discuss it.
of the withdrawal agreement's provisions. He, as a senior lawyer, like me will know that in a competition between the letter of assurance and the withdrawal agreement, the withdrawal agreement, as the international treaty, will triumph. That is the case, is it not?
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.
On this point about the legal effect and what the Prime Minister said—five weeks ago today, in fact—about legally binding assurances, does not what Attorney General has just said confirm the fact that legally binding assurances have not been achieved? That is the tragedy of where we find ourselves now, after five weeks. In fact, from our point of view, the thing that would have been essential to get this matter through the House with our support was not even asked for, which are the changes that would eliminate the trap of the backstop.
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 must make some progress. I will take many more interventions.
On the 585 pages, what does the agreement do? First, it secures the rights of 1 million British citizens living in the European Union and of 3 million European Union citizens living in the United Kingdom. What are we to say to them if this House today does not take the advantage of resolving and giving them the certainty of knowing that their position is enshrined in fundamental law?
I will in a moment.
The agreement settles the bills. It legally allows for the orderly completion of these thousands of continuing transactions—judicial proceedings, accounting procedures —that would otherwise be thrown into a legal void. It provides for a period of adjustment for people and for businesses of the next 21 months, extendable up to two years, to allow our businesses and our individual citizens to adjust to the new realities.
That is what I mean by the airlock. It is quite simple: an airlock enables the human body to adjust to the new pressure it will face when it exits the airlock. This period allows the transition and adjustment of this country to enter into the bright new world that we will enter when we leave the European Union. So I say to the House with all due diffidence and respect: we all of us would regard, would we not, these parts of the withdrawal agreement as essential to create the bridge for our departure from the European Union.
How can he on the one hand talk about coming together, yet his own advice to the Prime Minister talks of anything but?
I understand the force of what my hon. Friend says, but precisely the same prevails in numerous EU countries. For the purposes of regulation, the Canary Islands are treated as a third country to Spain. It is not for the purposes of regulation alone—single market regulations alone. There are examples all around the world of where there are regulatory differences between individual parts of the jurisdiction of sovereign states.
That is very strong language indeed—an "instrument of pain" for the European Union. Will the Attorney General take some time to explain that in detail? I think that would be very helpful.
I am immensely obliged to the hon. Lady because that is precisely what I want to move on to.
If we accept, and I urge this House to accept, that effectively 90% of this withdrawal agreement—some 450 of the 585 pages—in fact settles these crucial outstanding matters, which no sensible person could doubt require ​to be settled in order to effect our departure, that leaves the two grounds of objection that have been advanced—I listen with great care to speeches from Members on the Opposition side of the House—to this agreement and declaration, so may I come to those two grounds? Before I do, I simply say that there are some typical misconceptions about the withdrawal agreement. For example, it is said that the Court of Justice of the European Union retains jurisdiction over our courts once the time-limited obligations have wound down that the withdrawal agreement settles. It does not. It does not. It does not. It does not. How many times do I have to say it to my hon. Friends? [Hon. Members: "More."] It does not! The fact of the matter is that once—once—these obligations have wound down, the CJEU will have no jurisdiction over the resolution of disputes between individuals, citizens, businesses in our country. This is what our people voted for and we, by adopting this withdrawal agreement, can give it to them.
Secondly, it is said that we will be permanently bound by EU rules. But we will not. The fact of the matter is that the withdrawal agreement's obligations are inherently time- limited. Once they have wound out, the EU rules will no longer have effect in this country.
My right hon. and learned Friend is making his case with his usual eloquence, but on that specific point and his point about airlocks, airlocks need exit mechanisms. In the absence of legal certainty that we could unilaterally leave the backstop—my amendment (f) addresses this and I will be pressing it—what certainty is there that the EU does not drag negotiations on, so that we could still, with an extension to the transition period, be discussing these issues in four or five years' time?
Herein lies the critical question that we all have to confront in connection to the backstop. Before I answer it, however, I will take my hon. Friend's intervention.
I thank the Attorney General for giving way. While he pauses for breath, may I too take him to the airlock? In travelling through an airlock, it helps to have a supply of air. In this particular case, I would urge conditionality—that we do not agree to write out a cheque for £39 billion of hard-earned taxpayers' money unless or until a future relationship agreement is agreed that is legally binding. That would give us greater leverage in the negotiation and enable us to deliver serious value for the British taxpayer.
You cannot say to somebody to whom you owe money, "I am not going to pay you my debt unless you give me something else." It is not attractive, it is not consistent with the honour of this country and it is not consistent with the rule of law. The fact of the matter is that the withdrawal agreement settles those historic obligations.
Will the Attorney General give way on that point?
But even if I am wrong about that, let us examine what the hon. Member for North Down (Lady Hermon) asked me to look at. What is the position in the backstop? First, the European Union. No Belgian lawyer—there's a Freudian slip, Mr Speaker. No Belgian fisherman, no French fisherman, no Danish fisherman, no Dutch fisherman will be allowed to point the prow of their trawlers one metre into British waters under the backstop. They will have no access to the rich hunting grounds that for decades they have exploited perfectly lawfully, because the backstop provides them with no legal basis to do so.
I ask the House to reflect. Why does the House think that the rumblings and hollow thunderings of concern are emanating from the counsels of the Quai d'Orsay? They have 10,000 gilets jaunes on the streets of Paris and elsewhere, but if their fishermen are told that they cannot catch a single cod or plaice in the waters of the United Kingdom they will place intense pressure upon the European Union. So I say to the hon. Lady that that fact alone affords a real issue for the member states. But on agriculture, we do not have any further participation in the common agricultural policy under the backstop, and we pay, though we get tariff-free access to the single market, not one penny for that system.
I say to my hon. Friends, as I say to Opposition Members, the EU will have to set up entirely different legal and administrative systems in order to set up the customs union that is enshrined within the backstop, yet Britain will pay not one penny of contribution to those complex administrative and technical systems which the EU will, on their side alone, have to finance. How long does the House really think that the EU would wish to go on paying for a bespoke arrangement ​in which they are paying tens of millions of euros to sustain a customs union that is simply on their own admission a temporary arrangement?
Order. I have been tolerant thus far and I enjoy enormously the performances of the right hon. and learned Gentleman, but this perambulation is very uncommon and irregular. The right hon. and learned Gentleman must face the House. We want to see him and to get directly the benefit of his mellifluous tones.
You upbraid me entirely justly, Mr Speaker, and I apologise.
Everything the Attorney General says about the backstop may be true, but he knows that many of our hon. Friends are deeply concerned about this and we want an end date. I am not asking him for an answer now, but I see the Prime Minister and the Chief Whip on the Treasury Bench. There is an amendment on the Order Paper that has been selected by Mr Speaker, which could unite the party, or most of it. It is a compromise. If we can have an end date to the backstop, then we can move forward. I do not ask for an answer now, but I beg the Government to consider, over the next six hours, whether they should not accept these amendments because they would try to unlock this process and get it through Parliament.
The amendment that my right hon. Friend has tabled would, in my judgment, not be compatible with our international law obligations. He may know and accept that, but it is certainly my view that it would not be compatible and therefore would be likely not to be seen by the European Union as ratification. It would certainly raise serious question marks over the amendment.
May I take the Attorney General back to some time ago, when he was saying that there was a legal obligation to give £39 billion to the EU, despite the fact that we have been a net contributor of more than £210 billion since the EU started? Will he explain to me on what legal advice he says that, because the House of Lords said there was absolutely no legal obligation?
My hon. Friend is wrong. The House of Lords did not say that. The House of Lords Committee said that there was no obligation in EU law, but that there may well be public international law obligations. The basis of the argument that there are no public international law obligations is in my judgment—I have tested it, as I always do on matters of law, with some very distinguished lawyers with expertise in the field—flimsy at best. The House of Lords Committee did not say there are no public international law obligations.
I must move on, because the next thing I must deal with is the alternatives.
What about giving way to a woman?
I will give way to my right hon. Friend the Member for Broxtowe (Anna Soubry), but first I need to make some progress.
It was said last week by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) that we should have negotiated a full customs union with a say within the political declaration and then there would have been no need for a backstop, because the agreement could then have been concluded within the transition period. However, he knows, and it is clear, that the European Union is unwilling to and regards itself as bound by its own law not to enter into detailed negotiations on the permanent relationship treaties. The EU was never going to do it, and its own negotiating guidelines said it would not, so there was always going to be this withdrawal agreement, a political declaration setting out a framework and months, if not years, thereafter of detailed negotiation on any final resting place that any political declaration might have.
I will come to the hon. Gentleman in time. Let us examine the point. The question is on the basis for the objection to the withdrawal agreement.
The Attorney General and I are both members of the criminal Bar, although I was never in his league. We both understand the art of negotiation. ​Someone cannot be a criminal barrister or, indeed, any kind of lawyer unless they understand negotiation. He advances the case for the withdrawal agreement on the basis that it has reached some pragmatic consensus, but I suggest to him that a good negotiation is something that settles things and that a majority can positively support. The problem with this agreement is that it does not settle anything and it does not satisfy the vast majority. In fact, it probably satisfies no one in this House.
I respectfully suggest to my right hon. Friend that that is because the expectations of the withdrawal agreement have been far too unrealistic. [Interruption.] This is a serious issue, and I ask for the indulgence of the House in making what I hope is a serious point, although I have to give way to the hon. Member for Leeds West (Rachel Reeves). If the House does not accept the point, that is fine, but let me at least make it.
The withdrawal agreement and a backstop are the first and necessary precondition of any solution. Members on the Opposition Benches have real concerns about the content of the political declaration and the safeguarding of rights. I listened to Members speak last night about the enshrinement of environmental rights and environmental laws and so on, but the political declaration would never have been able to secured detailed, legally binding text on those matters, which will be discussed and negotiated in the next stage of negotiation. It makes no sense to reject the opportunity of order and certainty now because Members are unhappy that they do not have guarantees about what will be in a future treaty.
What will be in that treaty, governed by the parameters set out by the political declaration that I need to come to in a moment, will be negotiated over the next 21 months. This Government have made a pledge to the House that we will take fully the opinion of the House in all the departmental areas over which the negotiations will take place.
I hope it is a point of order and not a point of frustration. I await it with bated breath.
It is a point of inquiry, Mr Speaker. You will be aware that the Attorney General has now spoken for 49 minutes. I understand that a substantial number of colleagues wish to speak today. Can you tell us how many colleagues are waiting to speak and the approximate time people will get?
The hon. Gentleman is, as always, trying to be helpful, although it was really a point of frustration. The fact is, as I have previously advised the House, that no fewer than 71 hon. and right hon. Members are seeking to catch my eye. There are notable constraints to which I do not wish to add, but of which I feel sure the Attorney General will take account.
I set myself a clear time limit, but I am anxious—[Interruption.] You really cannot win. I am trying to take as many interventions as I can, and I will take that of the hon. Member for Streatham (Chuka Umunna).
The Attorney General talks about the danger of setting unrealistic expectations, but it was the Prime Minister sitting next to him who promised in her Lancaster House speech that we would have agreed the future relationship before exit day. Secondly, he makes great play of this implementation period, but it is of no use in some respects if we do not know to what we are transitioning. He knows that we will have a different European Parliament, a different European Council and a different European President, and two other presidents, who will all have changed by the time that the future relationship is due to be settled.
But it is not a legal document.
It is not a legal document, but no political declaration would ever be a legal document, by definition. Under EU law, we cannot have a finally negotiated text with all the legal detail.
Will the hon. Lady forgive me, but I really cannot? Her own colleagues say that I am taking too long, and I must wind up.
The position is that the political declaration includes two clear conditions. First, there will be no free movement. One cannot belong to the single market without participating in the four freedoms, therefore we will have a deal that admits of a spectrum of landing places where we will not belong to the single market.
No, I must now make progress.
Secondly, there will be an independent trade policy. One cannot have a customs union—certainly one that is not bespoke—while having an independent trade policy. The Labour Front-Bench team say that they want a customs union with a say. That would be the first time—if it were ever negotiable—that the European Union had allowed a third country to have any say in over commercial policy. Therefore, it is a fantasy, a complete fiction.
But the Attorney General will not hear this hon. Lady.
I thank the right hon. and learned Gentleman for giving way. He has been speaking for almost an hour, and for almost that entire time he has been addressing the concerns of a wing of his party, rather than the concerns of this House. In the past week, two amendments have been passed, neither with the support of the Government—to the Finance Bill and to the business motion—and both those amendments made it clear that the view of this House is to avoid a no-deal Brexit. That is the priority of this House—not the issue of the backstop, which he seems to have been addressing for the past hour. Instead of trying to unite his party, as the right hon. Member for Gainsborough (Sir Edward Leigh) has urged him to do, will the Attorney General try to unite the country, and to do the right thing by it, by ruling out leaving the European Union on 29 March without a deal?
Order. Zen—the House must calm itself. It is an early stage of our proceedings.
I say to the House with the greatest respect, we must seize this opportunity now. This is the key—the first of two—by which we unlock our future outside the European Union. I believe that it is an exciting future. I believe that the opportunity for this House to hold the pen on 40% of our laws, from the environment through to agriculture and fishing, should excite us as an opportunity to do good in this country.
Let us not forget, however, that many outside this House as well as in it wish to frustrate the great end to which the people of this country committed us on 23 June 2016—17.4 million of them in hundreds of constituencies, regardless of party, voted to part company with a political structure that no longer commanded their assent. We should be deeply grateful, because in other ages and other places, such a moment could only have been achieved by means that all of us present would deplore—but we should not underestimate the significance of the moment because it was expressed peacefully by the ballot.
If this vote fails today, those who wish to prevent our departure will seek to promote the conclusion that it is all too difficult and that the Government should ask the electorate to think again. That is why former Prime Ministers and their spin doctors, and all their great panjandrums of the past, are joining the chorus to condemn this deal, for they know that this deal is the key. There is no other. Destroy it—in some form or other, the only practicable deal—and the path to Brexit becomes shrouded in obscurity. If we should be so deceived as to permit that, when historians come to write of this moment, future ages would marvel that the huge repatriation of powers that this agreement entails—over immigration, fisheries, agriculture, the supremacy of our laws and courts—was rejected because somehow it did not seem enough and because of the Northern Ireland backstop.