Iain Duncan Smith questions the Attorney General on the legal position of the ending of the backstop

3rd December 2018

Following the statement from the Attorney General on the legal position of the Withdrawal Agreement, Iain Duncan Smith questions the Attorney General on the legal position of the terms “good faith” and “best endeavours” as referenced in the ending of the backstop.

I start by welcoming without reservation my right hon. and learned Friend to his position. He knows that I have believed for many years that he should have filled this post.

I welcome my right hon. and learned Friend’s statement. Page 6 of his document refers to what is defined as “good faith”. He mentioned the International Court of Justice, so I hope he will not mind if I quote from one of its judgments referenced in footnote 8. He talked about how long the backstop should last and what defined “good faith”. The judgment states that

“the failure of the Parties to reach agreement, 16 years after the conclusion of”—

earlier negotiations—

“does not itself establish that either Party has breached its obligation to negotiate in good faith.”

As my right hon. and learned Friend knows, his right hon. Friends on the Front Bench one by one have used good faith as their defence for being locked into this problem of the backstop and as their explanation of how we will get out. As a matter of law, is good faith required for best endeavours?

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.

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.

Hansard