I regularly meet ministerial colleagues to discuss important issues of common interest, including matters relating to the United Kingdom’s exit from the Union. I am unable, I am afraid, to talk about the legal content of those discussions because, as the hon. Member for Bishop Auckland (Helen Goodman) will know, the Law Officers are bound by the Law Officers’ convention to disclose neither the fact nor the content of that advice.
I remain committed to considering what assistance I personally can provide to this House on the legal implications of the backstop, to ensure that Members have what they need to make an informed decision. We have been engaging in focused, detailed and careful discussions with the Union, and we continue to seek legally binding changes to the backstop that ensure it cannot be indefinite. These discussions will be resumed shortly.
I am most grateful to the Attorney General for that very full reply. On 29 January, the Prime Minister told the House:
“What I am talking about is not a further exchange of letters but a significant and legally binding change to the withdrawal agreement...It will involve reopening the withdrawal agreement”.—[Official Report, 29 January 2019; Vol. 653, c. 678.]
Given the response that the Attorney General has had in Brussels and the remarks of the French Minister on the radio this morning, is it still Government policy to seek a reopening of the withdrawal agreement?
It is Government policy to achieve the necessary change in the backstop that will cause me to review and change my advice. That is Government policy; that is the subject of the discussions that we are having. I would say that it has come to be called “Cox’s codpiece”. What I am concerned to ensure is that what is inside the codpiece is in full working order.
Well! I hope everybody heard that. In the interests of the accessibility of our proceedings—in case anybody did not hear it—the right hon. and learned Gentleman referred to Cox’s codpiece. I have repeated it so that the alliterative quality is clear to all observers.
They say that the definition of insanity is repeating the same thing and expecting different results. Given that the Attorney General has not and will not be able to change a single word in this withdrawal agreement, how exactly would he describe the Government’s plans to put it to a vote again in this House next week?
The plans for next week are not mine to decide, but what I can tell the hon. Gentleman is this: we are discussing detailed, coherent, careful proposals, and we are discussing text with the European Union. I am surprised to hear the comments that have emerged over the last 48 hours that the proposals are not clear; they are as clear as day, and we are continuing to discuss them.
Will my right hon. and learned Friend give Parliament 48 hours’ notice or, at any rate, properly full notice of the outcome of his discussions with the EU? Will he provide to Parliament a draft of the withdrawal and implementation Bill, so that my European Scrutiny Committee, and others in Parliament and others outside, can assess how the withdrawal agreement will be enacted in domestic law, as obliged by article 4 of the withdrawal agreement; how the Bill would ensure the statutory manner in which the express repeal of the European Communities Act 1972 will be dealt with; and how the question of disapplication by the courts—by the Supreme Court—will be handled under that enactment?
We will endeavour to give as much notice as we possibly can. Of course those discussions are running. They will resume very shortly and continue almost certainly through the weekend. We will endeavour to give the House notice as early as we can, if and when we have something to report. My hon. Friend made a second point about the Bill. That is not for me to decide, although I will certainly discuss the matter with those who will make that decision. We will endeavour to give the European Scrutiny Committee, and my hon. Friend, the earliest possible notice.
The Attorney General is now in the interesting position of leading on these negotiations, which means that—to follow his nomenclature—he will end up examining his own codpiece in front of the House of Commons. How can he provide the objective advice to the House on which we rely when he will, in effect, be marking his own homework?
The law is the law. The question of whether whatever is negotiated with the European Union affects the legal risk of the indefinite duration of the backstop is a matter that I shall judge entirely impartially and objectively. If I did not, I would be conscious that there are many lawyers—
Article 175 of the withdrawal agreement which, as the Attorney General knows, deals with resolving disputes about the interpretation of the agreement, states that rulings of the arbitration panel shall be binding on the EU and the UK. In his letter to the Prime Minister of 13 November, the Attorney General stated that although the withdrawal agreement does not
“expressly state”
that the backstop review mechanism
“is intended to be arbitrable…I consider that the better view is that it is.”
In his recent discussions with the EU, has it confirmed that it shares that better view—in which case, why would one need to consider another separate arbitration mechanism for dealing with the backstop? Or has the EU said that it does not regard binding arbitration as applying to the backstop itself?
That is a question I would have expected from such a sophisticated Select Committee Chair. The problem is that although the arbitration system applies to the protocol, the question that one asks the arbitrator is at the heart of the effectiveness of any arbitration. Although I am not at this stage able to disclose to the right hon. Gentleman the question that has been proposed by the United Kingdom to the Commission, the question is everything. He may very well need to take that into account, because the question about when the protocol would end is likely to be determinative of whether the mechanism is effective.
I am glad to see that the Attorney General’s powers of alliteration have not dimmed since we first appeared in court together, and I know that neither have his independence, rigour, and respect for his constitutional position, which should never be questioned. Does he agree that when dealing with important matters of textual analysis and detail, it is unhelpful to attempt a running media commentary? Such commentary will inevitably be partial and inaccurate, and these matters are best pursued with care and rigour, and with the overall objective that he has just given to the right hon. Member for Leeds Central (Hilary Benn).
I am most grateful to my hon. Friend for that question, and of course he is right. Any negotiation of this kind involves dealing with complex legal questions and matters, and a running commentary that is partial and often based on hearsay and rumour is not helpful to the analysis of the question, or conducive to the success of the negotiations.