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.”
The complete record
Every one of 617 lines we hold for Sir Geoffrey Cox, in date order, each linked to its source. Free to read, in full, without an account. Page 12 of 13.
“I have enormous respect for the right hon. Gentleman and his suggestion, and I realise that other right hon. and hon. Members are considering similar things. I simply say this: what we cannot do is anything that is incompatible with our obligations under the withdrawal agreement. Any amendment to the meaningful vote that would introduce a qualification to our obligations under the agreement would be likely to be viewed by the European Union as a failure to ratify it and would justify non-ratification on its part.”
“We will be plunged into such great chaotic disorder in the circumstances that the right hon. Gentleman suggests that I very much hope the House will think and reflect carefully before doing that.”
“As my right hon. Friend knows, the job of any lawyer for any client is generally to assist the client to make decisions as to the balance of risk in any decision that they are about to take. There is no question but that the absence of a right of termination of the backstop presents a legal risk. The question whether it is one this House should take is a matter of political and policy judgment that each one of us must grapple with. The House has heard and, for reasons that I am not going here to expatiate upon, I have taken the view that compared with the other courses available to the House, this one is a reasonable, calculated risk to take. Other Members of this House must weigh it up, but that is my view.”
“I fully understand the hon. Lady’s understandable indignation, because the truth is that we are now in a curious situation in which no vote was passed against that motion. I ask her to reflect on this: let us suppose that the Government had voted against it and lost. What position would that place us in? It would place me in exactly— [ Interruption. ]”
“If the vote had been lost instead, precisely the same position would pertain, which is that the Attorney General and the Government would be faced with a clash of constitutional principle. Of course the Government wish to do all they can, which is why I am here today to answer as candidly and frankly as possible the questions of the House on any matter about which it wishes to ask, but if I am satisfied and convinced that any disclosure of the kind the House has asked for would be contrary to the national interest, I cannot comply with the House’s request. I urge the House to understand that I am doing everything I can, as are the Government, to fulfil the spirit of the request. No matter upon which this House inquires will be dressed up, disguised or in any way downplayed. Nothing—nothing—will be held back.”
“In this case, I am convinced that to disclose any advice that might have been given would be fundamentally contrary to the interests of this country. [Interruption.] I say to Labour Members that there is no use baying and shouting. What I am trying to do is guard the public interest—that is all. It is time that they grew up and got real. If there were a single item that I thought might be politically embarrassing, I would have no truck with the idea that this advice or any that I might have been given should be disclosed. It is because the public interest is at stake. What part of that proposition is the Labour party incapable of understanding?”
“Is the House, by means of this motion, to command any paper of any kind, central to the interests of this nation, without even being able to check that, by its release, it is causing, or might cause, severe damage to the public interest? I invite my hon. Friend to consider the implications of the absolute rule that he is talking about. It cannot be right and if one looks at previous versions— [Interruption.] If one looks at previous versions of “Erskine May”, one sees that the motion to return is confined to documents of public and official character. If there are good reasons of public policy why those papers should not be disclosed, then the House will either withdraw or rescind its motion.”
“Well, of course, when a request comes from the quarter from which it has just come, I will always want to re-examine the assumptions that I have made, but I have to say to my hon. Friend that the problem here is that it cannot be right that the House, by means of such a motion, has the power, blind, to call for any matter that has been discussed in connection with the Government of this country. Where does it end? [Interruption.] Just wait a minute. I am trying to do my best. Where do the limits of this power end? Does it extend to Cabinet minutes? Does it extend to the papers of the secret intelligence service?”
“I cannot breach the constitutional convention to a client—in this case, the Government—particularly if I believe, as I do with all candour and sincerity, that it would be contrary to the national interest in the course of a negotiation that might involve discussions about strengths, weaknesses and future strategies. [ Interruption. ] There was a sedentary comment from the Opposition; this is not arrogance. I wish that I could comply with the request of this House, but if I did, I sincerely believe that it would not be in all our interests. In a court, that matter can be resolved by a judge, but in the procedures of this House—it may very well be that we need to look at those procedures—there is no such arbiter. Therefore, although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”
“In all earnestness, when I gave my statement the hon. Lady will have noticed that I said that the House must understand the process by which the Law Officers give their advice. There may be no such “full legal advice”. Law Officers are consulted ad hoc, on the hoof, in fast-developing circumstances. That is what I said at the beginning of the statement. The fact of the matter is that I am here to answer the hon. Lady’s questions. [ Interruption. ] Well, then I will see the hon. Lady at any time and at her convenience, when she can ask me any question.”
“The answer is no. If anything, the leverage is in the opposite direction. The French, the Belgians and the Dutch all want access to our coastal waters, but this is outside the backstop’s purview. Therefore, they will want access and we will have to negotiate. We do not have to pay a penny. It is legally uncertain. We have regulatory flexibility in Great Britain. Northern Ireland has free circulation of its goods both to GB and the European Union. My right hon. Friend knows that I support leaving the European Union. If he wants my frank view, I believe that the European Union will be very keen indeed to do a deal with us.”
“The advice that the Attorney General and the Law Officers give on a matter such as this could be replicated by any lawyer of reasonable competence. Why, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) could pop down to his chambers and find half a dozen lawyers capable of giving the same advice that I might have given on these points—probably better. The truth of the matter—what is so important about my advice?”
“First, I point out to the hon. Lady that the advice of Lord Goldsmith was published two years after the event. What the House is now asking is that the advice, if any, given by the Attorney General be published in the middle of the negotiations, where we may still need to deploy many of the arguments connected with the withdrawal agreement in the future. Secondly, the advice of Lord Goldsmith was on a question of the lawfulness of the Government’s action. This is not a question of whether the Government acted lawfully; this is simply a question of whether the Government are acting wisely, on which Members of the House can disagree. There is a fundamental distinction between the position when the advice of Lord Goldsmith was given in 2003 and the advice today.”
“Well, it is very good of the House to attribute such importance to the Attorney General, but the reality is that, in terms of substantive effect, there are hundreds of lawyers who could give this opinion. [ Interruption. ] Let me finish.”
“The Attorney General has a very special role when the lawfulness of the Government’s action is at stake. There, it is true, he occupies a central role, because if he says it is not lawful, the Government cannot act contrary to his advice. But in a case such as this, the essential question before us all is a political question, not a legal one.”
“On all points of law about which this House has asked me, or any point arising from the withdrawal agreement, I will give the same view to any person who asks.”
“I can only tell the right hon. Gentleman that I have not massaged the advice. I have given it absolutely as I see it—absolutely starkly. I will give that same advice if anybody asks to come and see me, but I cannot breach the fundamental constitutional principle that I believe it would be contrary to the public interest to break. I can only invite the right hon. Gentleman to accept that I have given this advice as candidly as I possibly can; I cannot say any more if he does not accept that.”
“I will certainly give my hon. Friend’s point consideration, because that may be one way forward. At the conclusions of today’s proceedings, I shall consider what the position will be, and I shall be writing to Mr Speaker with my conclusions and proposals.”
“With respect to the right hon. Gentleman, he has had my legal advice. What he has not had is what is in any kind of document that might have been created or my oral advice in any other circumstance, to Government Ministers or to the Cabinet—if such exists. But he has had my legal advice—”
“Yes, the right hon. Gentleman has had my advice, and can have it at any other point on matters of law arising from the withdrawal agreement.”
“I think the right hon. Gentleman has plenty of opportunities to consult people other than me. Ultimately, what the House will have to decide is whether an Attorney General and a Government who are seeking to protect the public interest are in contempt of its motion when they have sought to comply with the spirit of it to the maximum possible degree, and when they have put their legal adviser at the disposal of the House and instructed him to give full, frank, complete answers to any question asked on the matters of law that any legal advice would have been likely to cover.”
“I cannot. I cannot, without breaching the convention, disclose whether or not I was asked to advise on any particular point. But what I can say is that the question of termination clauses was most certainly raised in the negotiations, but the European Union declined to entertain those termination clauses. It did so because the backstop is envisaged as an absolute guarantee that in all circumstances, including that of no deal, there would be no hard border at the Northern Ireland-Republic of Ireland border. Therefore, to have a termination clause would be a contradiction in terms. It would not be a guarantee if you can walk away from it. That is the decision the House must face—in the light of that, it must decide whether this is an arrangement into which it should, given the alternatives, enter.”
“I say to hon. Members that I understand entirely their feelings of concern, even distaste, but this is a question affecting the whole 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.”
“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.”
“Agri-goods, yes—goods only. So I would urge Members to consider the interests of the United Kingdom. I fully understand the elements of this agreement that are dissatisfactory to them.”
“There is nothing to prevent a case from being brought to the Court of Justice of the European Union on whether any agreement that is signed by the European Union is compatible with the treaties. But I would point out that, as I said earlier, the time at which the backstop becomes legally vulnerable, or most legally vulnerable, is the time at which it becomes, de facto, not simply temporary but permanent. It is at that point that the problem may crystallise in connection with the use of article 50 to conclude this agreement. The legal uncertainty about knowing whether the backstop would survive such a challenge is one of the factors, I believe, that will impel the European Union to conclude an arrangement with us in expeditious time.”
“The decision as to whether a Law Officer’s advice, should any have been given, should be published is a collective decision of the Government. The Attorney General must consent, but first, it is a collective decision of the Government. I hope that that answers the question. I had no discussions with the Chief Whip on this subject. None was sought.”
“I am grateful to my hon. Friend for her question. May I say candidly that I did not say it was not a risk? It is a risk, but, weighed against the other risks of utter chaos, losing our departure from the European Union on 29 March or the consequences of so grave a breach of faith with the people of this country as to ignore the outcome of the referendum, I believe it is a risk that we have to take. Secondly, my hon. Friend asked about fishing. She is right that in the backstop, there would be no access to our waters other than that to which we agreed.”
“The whole principle of devolution is that there will be divergences between parts of the United Kingdom that are governed by devolved Assemblies. Unfortunately, in Northern Ireland’s case, that devolved Assembly is not at present functioning. Were the institutions functioning, they may well have been given a central role in these matters, because Northern Ireland shares a land border with the European Union and therefore calls for special, specific measures rather than the same considerations that apply to other parts of the European Union.”
“It is true that the European Union is not a member state and is not a state, and therefore it is unable to take the case to the International Court of Justice. It might therefore be difficult to enforce the public international law obligation that existed. However, I ask the House to reflect on the fact that if this country, acknowledging that such obligations probably exist or do exist, did not pay them, it would be likely to cause the deepest resentment, just as it would to any of us who were unpaid a debt. If we leave a club, we pay the bar bill. If we do not pay the bill, we are not likely to get a lot of consideration from the other side.”
“The position on money is this. The view of the Government, and my view, is that we would have obligations to pay a certain amount of money were we to leave the European Union without a deal. The House of Lords European Union Committee concluded that there would be no obligation under EU law. That is a stronger argument—not necessarily an incontestable one—as to our obligations under EU law, but the Committee also concluded that we might have obligations under public international law, and with that I agree. There is an argument that we would not have an obligation under public international law, but it is an argument unlikely to be accepted by any international tribunal. My view is therefore that we would owe a presently unquantifiable sum were we to leave the European Union without a deal. It is impossible at this stage to say how much.”
“Lady on the Labour Benches said that I was being arrogant. I am not. I am trying genuinely to protect the public interest. The last thing I want to do is to be at odds with this House. I have been a Member for 13 years. I would very much like to ensure that the House is satisfied, which is why I am here today, answering these questions.”
“The Attorney General, by definition, is only called upon to advise on matters that are exceptional or in exceptional circumstances. The question here is what requires the advice of the Attorney General to be disclosed. In Lord Goldsmith’s case, the issue was whether the action of the Government was lawful. The action of the Government could not be taken if the Attorney General had not signed off on it, because it would be contrary to the ministerial code. The circumstance here is that the House has available to it a wide range of highly competent legal advice that is just as good as mine and as those who advise me. There is nothing essential, I suggest to the House, about the advice of the Attorney General being disclosed in this case, but there is something that could lead to severe damage to the public interest. One hon.”
“I am grateful for my hon. Friend’s question. As I have said, I think that there is unquestionably a risk. There is a legal risk because there is no unilateral means out of the backstop. The question is with what degree of probability one thinks it would arise. My view is that it is not probable, but other Members will have their own views.”
“If an EFTA-style arrangement —of course, a country cannot belong to EFTA if it is a member of a customs union—with a customs union were introduced, I see no reason why it would not satisfy the stated objectives of the backstop in protecting the hard border and north-south co-operation. The hon. Gentleman asked whether the arrangement is terminable. I think it is terminable on 12 months’ notice, but I may be wrong. However, a customs union would fall to be negotiated specifically with the European Union, and one would have to insist upon such a termination clause in that union. That would be a question of agreeing it with the Union.”
“I do not accept that characterisation because, in any event, the only things that can be brought before the tribunal are systemic, operational issues to do with the management of the agreement by both sides. The Court cannot get involved, once the winding down has taken place, in the resolution of individual disputes between the citizens and businesses of this country. Members really must understand that. It will be over: the ECJ’s jurisdiction will be finished once the winding down takes place. This is an entirely different situation to resolve disputes between the state of the United Kingdom and the European Union. Where we have agreed to apply European Union law, it makes perfect sense that the EU Court should interpret it, and then it should be applied by the arbitral tribunal. I have to say to my hon.”
“It is not such a matter. I must ask the hon. Gentleman to accept that it is not a matter of the Government’s interest. It is a matter of the public interest of this country through a fundamental convention and principle.”
“Well, that is what I understood the hon. Gentleman to have asked. With respect, I simply cannot accept that this is being done to protect the Government. It is not; it is being done for one reason only—the public interest. The question for this House is whether the Government, who are trying to protect the public interest, or any individual member of the Government are being contemptuous of the House, when they are driven—he is driven—to this position by a firm and conscientious conviction that it is contrary to the public interest.”
“I do not agree with my hon. Friend that this is a sell-out. There is no question but that aspects of it that are both undesirable and unsatisfactory, but this backstop need not ever be triggered, and if we are in, I am confident that we can emerge out of it. It will also produce significant benefits for the people of Northern Ireland—let us not forget that—were it ever to be engaged.”
“However, I am doing so not to frustrate the legitimate interests of the Members opposite or Members behind me, but rather and only because I do believe it is against the public interest at a time when we are negotiating and at a time when this involves advice to a Cabinet or might well involve advice to a Cabinet that must, for reasons of fundamental principle, be kept confidential.”
“I hope the House will reconsider the position. I hope that it will understand that no Attorney General and no Government would wish to place themselves—and certainly not I as Attorney General—in contempt of the House. There is simply nothing of that in my desire or wish, and I would not take this position if I did not feel that that was contrary to all our interests. I stand before the House fully understanding the nature of its concern, not to say indignation; I accept that. It is a deeply unsatisfactory position for any Attorney General or Government to be in. I am truly sorry that I am not in a position to disclose either the fact or the content of my advice.”
“We will find another, and it will not, except by the consent of the Stormont institutions, have the same problems that the backstop has.”
“My hon. Friend must understand that we cannot look at this simply as a question of the traffic of goods between the Republic and Northern Ireland. The stated objectives are to protect in all its dimensions the integration that has taken place between Northern Ireland and the Republic—in health treatment, in education, in cultural activities—and all these activities are to be protected. The Government of the United Kingdom have made a solemn and good faith pledge to the Republic of Ireland and to the European Union that they will preserve that integration in the interests of the people of Northern Ireland. What we have to do is find a way of doing so that is consistent with the interests of the Union and of the United Kingdom. The backstop is a temporary solution.”
“I think I have made it plain that I am not seeking to suppose that I can override the decision of the House of Commons. The House has at its disposal— [ Interruption. ] Hear me out. The House has at its disposal the means by which to enforce its will. It can bring forward a motion of contempt, seek to have that motion passed and seek, through the Committee of Privileges or whichever way it is appropriately done, to impose a sanction. I fully accept that. I do not set myself up contrary to the House; I simply say that I cannot compromise the public interest, and if I had my personal desire—”
“The hon. Gentleman is shaking his head. Why would he not believe me? Does he think I want to be in this position? Does he really think that if there were not some fundamental bar of principle against my disclosing anything I might have given to the Government, I would not immediately volunteer it to him and all hon. Members opposite? I am only doing it to protect us.”
“There is a formula in the agreement for the calculation of our obligations, but it depends on others’ contributions, what particular programmes there are and whether they spend particular sums of money. There is a series of variable factors, which is why we cannot give a firm, clear and precise figure. If my hon. Friend is referring to what may be due after no deal, that would depend on a series of arguments that would be untested except in a court.”
“Suppose there was advice, and suppose the advice contained—this is a hypothetical situation— [Interruption.] Well, the same principle applies. Suppose the advice contained information, facts or considerations of the most acute significance for the national interests of this country.”
“But one might lose the vote. What then? No Minister could go ahead and harm the nation merely because of a resolution, when the House had not seen the document. In court, there is a mechanism for weighing this, but the House has not seen the document. The motion for a return was traditionally always confined to public and official documents.”
“That is because this procedure has been reinvented recently. The truth of the matter is that the House has no power to command documents that are not public and official. That is the constitutional question that the House needs to grapple with.”
“As my hon. Friend knows, that is not a legal question. We have reached a deal. The House must make a judgment on this deal. If it had been possible to secure a unilateral right of termination, it would have been secured. It was not secured because the European Union asked for an absolute guarantee at the Northern Irish border, but has said that it is temporary; that is written into the agreement. It may well be that the word “temporary” is not enforceable, in the sense that this will subsist even in the event of negotiations breaking down, but that is a clear indication that the backstop cannot subsist forever; and, in my view, as a matter of European Union law, it cannot.”