Iain Duncan Smith questions the Attorney General on the EU obligation to consider alternative arrangements to the backstop

12th March 2019

In response to the Attorney General’s legal opinion on the withdrawal agreement and unilateral declaration, Iain Duncan Smith asks him about the EU’s obligation to consider any backstop alternative arrangements proposed by the UK.

I welcome my right hon. and learned Friend to his place. He has shown absolutely that he is what he should be: an independent adviser to the Government. I congratulate him on that, because that is exactly what he should be. Given the clarity of his advice, I want to ask him a particular question. As he will know, I and others have spent some time looking at and working on alternative arrangements. I would like to clarify exactly what force he thinks those would have. As he said just now, there would be an obligation for the European Union to “consider or adopt” such proposals if they were made in a reasonable way. How does that square with his paragraph 16, in which he says

“it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for such a breach under the Withdrawal Agreement”?

My right hon. Friend has got paragraph 16 wrong, if I may respectfully say so. What it says was that I advised in the past that that was so. What I now consider, at paragraph 17, is:

“that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk”

that we would be held involuntarily and by the bad faith. Why? Because these new provisions make it easier to facilitate an effective claim to the arbitrator that that conduct is being exhibited. Those are cumulative. If one looks at the agreement as a whole, one sees that the obligations on the Union are to treat with urgency the negotiation of alternative arrangements. There is a new obligation that has not existed before in any document that the Union has agreed to, which is that it must aim to do this within 12 months of our withdrawal. That is an important obligation, because it makes time of the essence. If that deadline is passed, as in any legal jurisprudence on such matters relating in a domestic context to breach of contract, for example, that means that the parties must demonstrate that they are intensifying their efforts. If they do not, they could be in breach of their best endeavours obligation.

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