Sir Geoffrey Cox
MP for Torridge and Tavistock · Conservative · United Kingdom
“Once upon a time, it would not have been necessary for a Secretary of State for farming to come to the House to say that the primary purpose of farming was food production. The central recommendation of Minette Batters’ report was to make food security a national strategic priority.”
“I will give way to the hon. Member for Colchester (Pam Cox) first, if she can give me just two seconds. I want to develop this theme, because it is very important to me. There are some things that have to be above politics. If there are not, we have no society to defend.”
“Not just now. I say to the House, in all conscience, that jury trial is precious. Why? It is precious because it unites all parts of the political spectrum. It is precious because it allows the people of this country to be directly engaged in the adjudication of guilt or innocence in thousands of cases across the country.”
“No, I am not giving way. I am mindful of time and I must complete what I have to say. This is a time when not just this House but the judiciary and the courts are under attack. The unprecedented attacks upon the judiciary and the legal profession are deplorable. Institutional trust is under siege, and now is not the time— [ Interruption.”
“No, I am not giving way. Let me make that clear now. I want to finish in a moment. The reality is that jury trial is too precious a thing to lose. We are faced with a question of principle here.”
“I should declare an interest at the beginning. I am a member of the Bar—that is not uncommonly known—I still practise at the Bar, and I have the honour to be a criminal barrister and a member of the Criminal Bar Association. I have spent 44 years at the Bar.”
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“That matter is under review. Let me say clearly that the question of what legal route would be required to trigger the process has not been considered at any length because there is no intention of doing so.”
“As the hon. and learned Lady knows, the Government’s position throughout was that the case involved a hypothetical question. It does raise an important matter of constitutional principle as to whether courts should be able to be seized of issues under live debate in Parliament, when Parliament does not ask for an opinion, simply in order to inform debate. The Government took the view that the matter was hypothetical—we still do—but the truth of the matter is that the ECJ has ruled and we are where we are.”
“I am at the disposal of the House to answer questions, in so far as I can, on these and other legal matters. I commend this statement to the House.”
“It is then for the panel to apply that interpretation to the facts of the dispute, and thus decide how the dispute should be resolved. The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. The gradual loosening and removal of the legal ties that have bound us to the European Union for 45 years will take time to work out. This agreement and the European Union (Withdrawal) Act 2018, already passed by the House, allow for the necessary time and legal means for that process to unfold in a peaceful and orderly way.”
“It provides, under article 160, for Union law and the jurisdiction of the Court to apply beyond the implementation period only for the time and purpose of closing out the UK’s financial obligations and entitlements incurred under Union law, again prior to the end of that period. All these are inherently time-limited functions, and once they are at an end the Court will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom. A dispute between the EU and the UK about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel in which the Court has no automatic role, but if the panel needs to and a question of interpretation of Union law is relevant to the dispute, it can ask the Court to resolve that question.”
“Part 3 deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period, and to which Union law and the role of institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court an alleged breach of an obligation incurred prior to the end of the implementation period. Part 5 deals with our agreed financial obligations.”
“Instead, pursuant to article 158, the UK courts, for a fixed period of eight years only, may refer—I repeat, may refer—to the CJEU a question of interpretation of part 2 of the agreement in the interests of achieving consistency in the enforcement of the rights of citizens while the new system is established. After that time, our courts will, pursuant to article 4.5, continue to interpret concepts and provisions of Union law in the areas in which the agreement applies it as they always have, and to have due regard to relevant post-implementation case law where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.”
“If they are to be preserved in equal measure and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of those particular groups of people must continue to be defined by reference to that law. Those rights are provided for in part 2 of the agreement. Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the United Kingdom will look to the UK independent monitoring authority set up under article 159 and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the CJEU where the determination of such a question is necessary to resolve a dispute.”
“During that implementation period, so as to give the time, predictability and continuity that is needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before. But on the conclusion of that period, on 31 December 2020, that will come to an end. Thereafter, Union law and the Court of Justice will possess a relevance in the United Kingdom only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states and of EU citizens in the United Kingdom are created and defined by Union law.”
“It is important to place these provisions in the context of the objectives of the agreement, which is the orderly exit of the UK from the EU for our citizens and businesses. To that end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects, where it is necessary or desirable for legal certainty to do so. Although we will legally leave the EU and cease to be a member state on 29 March 2019, part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming.”
“Those rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union. By those means, the need for any hard border would be avoided, and goods originating in Northern Ireland would be entitled to free circulation throughout the EU’s single market. In all other respects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where those were devolved. By article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor—whether situated in the Republic of Ireland or elsewhere in the single market—would not. I turn to the role of Union law and the CJEU under the withdrawal agreement and within the dispute settlement provisions.”
“How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements. Under the protocol, the UK would form with the EU a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the EU customs code.”
“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, which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions. There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down.”
“That language reflects the fact that article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states. If either party did not comply with its obligations of good faith after the implementation period, it would be open to them to bring a complaint under the dispute settlement provisions set out in articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of that obligation.”
“The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom and the associated amendment to the Irish constitution to remove its previous territorial claim remain in place. Once in force, by article 2.1 of the protocol, the parties would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes it. There is a separate but closely related duty on the parties under article 184 to negotiate expeditiously and use best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by article 1.4 of the protocol, it is expressly agreed not to be intended to establish a permanent relationship but to be temporary.”
“However, I am aware that there are certain parts of the agreement the meaning of which attracts the close and keen interest of the House, and it is to some of these that I now turn: first, the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020 unless, pursuant to article 132 of the agreement, both the UK and the EU agreed to a single extension for a fixed time of up to one or two years. By article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast or Good Friday agreement.”
“It is important to recall that the matters of law affecting the withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed. In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney General—certainly not this one—can instantly possess the answers to all of the pertinent questions that the skill and ingenuity of hon. Members may devise.”
“There is, of course, no want of other sources of helpful commentary available to the House, and in making this statement in these unusual circumstances and in answering any questions that hon. Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially, and to place such legal expertise as I have at its disposal. The historical precedents strongly support that view. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe that it can or should pass under any misapprehension whatsoever as to the legal matters on which that judgment should be based.”
“Ministers are advised by their own departmental lawyers, and the points that arise for consideration of the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government. Therefore, my statement today is complemented by a detailed legal commentary, provided for the purpose of the debate and published this morning, that analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them.”
“It is very good of the Prime Minister to warm up for me today. With permission, Mr Speaker, I wish to make a statement to the House. I should make clear the context in which I consider that I am to do so today; my statement is intended to inform the debate that is shortly to commence on the motion to approve the withdrawal agreement and the political declaration on the future relationship concluded with the European Union by my right hon. Friend the Prime Minister. It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events.”
“First, let me say that the hon. Gentleman has far better than any advice I may or may not have given to the Government: he can ask me. All he has to do is ask and he will receive, because I will give him a frank answer. [ Interruption. ]”
“Let me make it plain: there is no such right to terminate if the Northern Ireland protocol comes into force. The question of how likely it is to remain in force is a political judgment to be based on factors largely relating, as I have said, to in whose interests it would be to remain in it for longest. [ Interruption. ]”
“The truth, however, is this: what is the political imperative of either entering into it or not entering into it? That is a calculated equation of risk that each Member of this House is going to have to weigh up, and do so against different alternatives. The hon. Gentleman also mentioned that I should answer whether other treaties are permanent. Hundreds of treaties throughout the world are permanent—treaties on borders, treaties on rivers; the Vienna convention has entire sections on permanent treaties. If the hon. Gentleman wants me to enumerate some, I will write to him with them—I am afraid I do not have them to hand. There is an entire section of the Vienna convention on permanent treaties. The question whether we have a right to terminate under the convention is a matter of construction.”
“It is very rare for the Attorney General to appear to answer questions in the House on matters of law. I am doing so, so that Opposition and Government Members can have a full, frank and thorough opportunity to ask me, as the Government’s chief legal adviser and as an adviser to the House on constitutional and legal matters, what our legal position is. I assure the House that if questions are asked, I shall answer them candidly. The hon. Gentleman told me that I had not said anything about the subsistence of the Northern Ireland protocol. Let me make no bones about the Northern Ireland protocol: it will subsist. We are indefinitely committed to it if it comes into force. There is no point in my trying or the Government trying to disguise that fact.”
“So I agree with him: this represents a sensible compromise. It has unattractive and unsatisfactory elements for us, but it is for the House to weigh it up against the potential alternatives and to assess whether it amounts to a calculated risk that this Government and this House should take in these circumstances, weighed up against the realities of the alternatives.”
“I am most grateful to my right hon. and learned Friend for his question. The truth of the matter is that the Northern Ireland protocol would represent a solemn commitment to the people of Northern Ireland that this Government will honour and respect the Belfast agreement. I make no bones about it: I would have preferred to have seen a unilateral right of termination in the backstop. I would have preferred to have seen a clause that allowed us to exit if negotiations had broken down irretrievably, but I am prepared to lend my support to this agreement because I do not believe— [ Interruption. ] I am most grateful for those cheers of applause. I do not believe that we are likely to be entrapped in the backstop permanently. I can give reasons why I say that, but my right hon. and learned Friend has foreshadowed them.”
“If negotiations irretrievably broke down, the protocol would de facto become permanent and therefore seriously challengeable in the Court of Justice of the European Union for being invalid. That legal uncertainty by itself is sufficient to promote to the EU the need to do a deal with us. It would be profoundly detrimental to thousands—indeed millions—of traders throughout the single market. That is one factor that convinces me that this is a risk worth taking.”
“I have the greatest respect for the hon. and learned Lady. She has put her case rationally and reasonably, and I will deal with her points one by one. She asked whether there was anything to prevent the protocol from becoming permanent in the event of no agreement. As a matter of international law, no there is not—it would endure indefinitely, pending a future agreement being arranged—but that does not exhaust all the matters of law. As a matter of EU law, it would, in those circumstances, be highly vulnerable to legal challenge. It is widely accepted, including by the EU Commission and taskforce 50, that article 50 is not a sound legal foundation for permanent arrangements between states.”
“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 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.”
“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.”
“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?”
“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.”
“This is not a question of the lawfulness of the Government’s action, as it was in the publication of Lord Goldsmith’s advice; this is simply a view on the legal effects of a particular agreement. There are hundreds of lawyers throughout the United Kingdom, I am delighted to say, who could offer a perfectly competent view on this agreement. I cannot see why there is anything exceptional about the current circumstances and about my advice. But let us suppose there were something exceptional about my advice; well, I am here to be asked any question that the Government have also asked, so all that right hon. and hon. Opposition Members have to do is ask and I will give them a frank answer.”
“There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do. She knows what I mean. Therefore, I cannot take a step that I firmly and truly believe would be contrary to the public interest. I ask the House to understand that it is only that consideration that is motivating me and this Government in declining at this stage to break the convention that applies to both sides of the House when they are in government. There is nothing to see here. [ Interruption. ]”
“I am grateful to the right hon. and learned Lady for that question. The truth is that I am caught in an acute clash of constitutional principle. A Minister is obliged to have regard to the public interest and the national interest. Let us suppose I had given any such advice that has been requested by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), and let us suppose that that advice had covered all sorts of matters, including our relationships with foreign states and including arguments that might be deployed in the future—and their strengths and weaknesses—and including matters of acute importance to this country; would it be right for the Attorney General, regardless of the harm to the public interest, to divulge his opinion? I say to the right hon. and learned Lady that it would not.”
“I ask the right hon. and learned Lady to accept that I will give this House a stark, uncompromising and completely frank view on any relevant point of law. I suggest that, if I had given advice, there would be no real significance in that advice being disclosed, because this House has the opportunity to ask me directly.”
“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.”
“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.”
“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.”
“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.”
“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?”
“Friend went on to ask me about article 50 and the time it might take. The period of years he mentions is probably far too long, but it is impossible to say. What one can say is that, long before any case is brought, the pressure bringing those cases to the Court would be telling upon the Governments of the member states and upon the European Union. The legal uncertainty would be intense, and it is a real factor that this House must weigh up in considering whether the protocol is something that it wishes to support.”
“Article 20 permits both sides to consider, even when no final agreement has yet been reached, whether alternative arrangements might suffice to protect the stated objectives of the Northern Ireland protocol. If they do, both sides could agree to put in place those alternative arrangements before any final agreement had been reached. It is important to remember that, when one says final agreement, it is of course possible, indeed likely, that it may be a series of agreements reached at different times. My answer to my right hon. Friend is that article 20 creates that ability, but it is not a unilateral right of termination. It does not give us a right to walk away. It creates a procedure and obliges the European Union to consider alternative arrangements that are not part of a final deal. I think my right hon.”
“They have granted access to the single market for no contribution, without free movement, without signing up to the common fisheries policy and without signing up to the common agricultural policy. For all those reasons, what I say to the right hon. Lady is that if it is painful to us, it will be as painful to them. Where we want to end up is an arrangement that suits us both. This suits neither.”
“What I do say is that the customs arrangement under the backstop produces the following advantages. We pay not a penny and our goods have free access, in fiscal and tariff terms, to the European Union, yet the regulatory framework that we have to observe is dealt with by way of non-regression clauses that are not enforceable either by the EU institutions or by the arbitration arrangements under the withdrawal agreement. They are policed solely by British courts and British authorities. In those circumstances, what does it mean? It means that they have split the four freedoms. They have created a situation where we can have the regulatory flexibility that they cannot.”
“Evidence of wilful intransigence, evidence of refusal to engage, evidence of refusal to entertain alternative proposals or alternative means of achieving the outcomes that both share: that type of evidence, cumulatively, could amount to a case of bad faith, but each situation is facts-specific. It is not possible to identify beforehand, but those are the kinds of things that would be relevant.”
“The regulatory regime in Great Britain will be a matter entirely for the Government of the United Kingdom. It is permitted and agreed under the protocol that they can maintain their regulatory regime in the way they choose, in which case they could choose to maintain, as I have no doubt they would wish to do, regulatory parity with the position in Northern Ireland. That is all the Secretary of State is saying, and I see nothing controversial in that.”
“I do agree with that; the duty of good faith is a very solemn, well-understood one in international law. It would be an astonishing thing if the EU were not to negotiate in good faith, particularly after the act of good faith that this country, in concluding this agreement, will have committed itself to. So this is not something that can simply be ignored, but I fully accept that it is not a unilateral right of termination and it would not be easy to establish “bad faith” against an organisation of the type of the EU. It would never happen, because I do not believe that the European Union would descend to the kind of behaviour necessary for a bad faith claim to be brought successfully.”
“I only wish I had the influence that the hon. Lady believes I have. I did not advise the Chief Whip, and I do not suppose he would have taken the advice even if I had given it.”