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British Prime Minister Theresa May Has Just Suffered Another Major Blow. Aired: 8-9a ET
Aired March 12, 2019 - 08:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: This is CNN Breaking News.
JULIA CHATTERLEY, ANCHOR, CNN: Hello and welcome to the special edition of CNN Newsroom from outside the U.K. Houses of Parliament here in London.
I'm Julia Chatterley.
British Prime Minister Theresa May has just suffered another major blow. Her Attorney General just weighed in on the revision she worked out with
the E.U. to her latest Brexit plan. He said that Mrs. May's tweaks do nothing to reduce the legal risk of the current backstop arrangement. In
fact, the U.K. could essentially be trapped in the arrangement.
In a few hours, here in Westminster, lawmakers will vote on all of this and the stakes could not be higher.
There are 17 days left now until the March 29th deadline, and here is where we are with the only deal on the table. In a half an hour, Geoffrey Cox
will explain his opinion to Parliament behind me, after that Theresa May opens the debate on the deal, and at 7:00 local time, lawmakers will cast
their final vote on this deal on which Theresa May has staked her career.
Our CNN team has all the angles covered for you, at always. Hadas Gold is outside Number 10 Downing Street, Erin McLaughlin is standing by at E.U.
headquarters in Brussels.
Hadas, I'll come to you first, I just described it as a huge blow to Theresa May here. The Attorney General saying, "Look, the legal risks
around this backstop have not reduced, the political risks have." Is that anywhere in there enough here for Theresa May to get the vote she needs?
HADAS GOLD, REPORTER, CNN: No, Julia, honestly, even before Geoffrey Cox's statement, there was some feeling that even if he came out and said, "Hey,
what she got is great, that's enough, we're all good," that might have still not been enough to convince enough Members of Parliament, not only of
Theresa May's own Party, but others that she needs to come in and vote for her deal tonight.
But this recent statement from Geoffrey Cox pretty much, you could say, puts the nail in the coffin that her deal is almost completely unlikely to
pass tonight. The question again, as we have seen before is how big is the margin going to be?
Now, we are almost definitely going to be heading towards those extra votes that we talked about. Tomorrow, there will be a vote on whether to take a
no-deal scenario off the table. There does seem to be the numbers for that. Next will then be a vote on whether to extend Article 50 - that is
the deadline of when the U.K. would leave the European Union and if that happens, then we are in a new scenario.
We have a few more weeks, maybe a few more months before another deadline, but then what happens? Has anything changed? The European Union as I am
sure, Erin, can talk about has said this was your last chance, it's this or nothing.
So then the question becomes what happens to Theresa May? Does she resign? Are there new elections? We already know that there is rumblings of new
leaders trying to step forward and take Theresa May's place.
What is clear, though, is Geoffrey Cox has seemed to really be the last straw that broke the camel's back when it comes to whether Theresa May's
deal would pass tonight and it's not looking good, just like the weather here in London today.
CHATTERLEY: Hadas, thank you so much for that. Erin, I will come to you. As Hadas just laid out, if this deal fails tonight and we move ahead to a
vote tomorrow to rule out a no-deal exit here, the Brexiteers will argue Theresa May just handed away all the leverage, all of the threat that she
had. The question is now for the E.U. side, will they give her any more than they gave her last night?
ERIN MCLAUGHLIN, CORRESPONDENT, CNN: The answer to that based upon what we heard from the President of the European Commission, Jean-Claude Juncker in
that joint press conference in Strasbourg is, no, there is nothing more to give. He was very clear. He said that there are second chances in
politics. This is the second chance, but there will be no third chances. There will be no reassurances on top of reassurances.
It's this deal, he said, or no Brexit. But frankly, I've been talking to diplomats here and they are very concerned about the no-deal possibility,
as well. Because if they even go for an extension there at Westminster later in the week, if this deal is voted down, the possibility of an
extension say, until May simply just kicks the can down the road.
The fundamentals of this situation remain, that the E.U. sees that backstop as absolutely necessary for peace on the island of Ireland. That will not
change. The backstop will not change. Juncker last night was very clear that what they agreed upon complements the withdrawal agreement. In no
way, contradicts the withdrawal agreement and the E.U. shows no signs of budging in that direction at this point.
[08:05:07]
CHATTERLEY: Yes, and the Attorney General here in the U.K. saying it's simply not enough. Erin McLaughlin, thank you so much for that. Hadas
Gold, of course at Downing Street for us, too.
Right, so what happens next with today's vote and beyond? Well, it could be complicated. This is sort of a Brexit road map. If lawmakers vote yes,
then the U.K. leaves with Mrs. May's deal; however, if it's a no tonight, then we'll see a vote on Wednesday as Hadas mapped out there on leaving
with no-deal at all.
If Parliament decides they don't want to see a no-deal exit, then there will be a vote on Thursday on requesting an extension, so pushing the time
horizon beyond March 29th. If that is a no, well, it's anyone's guess. Joining me now is someone who believes a no-deal Brexit would be better
than a bad deal, conservative MP for Reigate, Crispin Blunt.
Sir, fantastic to have you on the show. What do you make of the developments over the last hour, the Attorney General saying, "Look, this
simply isn't enough as far as the legal requirements are concerned to get out of the backstop if the U.K. wants it."
CRISPIN BLUNT, MP, CONSERVATIVE PARTY: Huge credit to the Attorney General for standing firm under what has been the most enormous political pressure
from the Prime Minister and her colleagues around the Cabinet table to invite him to buckle and produce legal advice which suited the government's
withdrawal agreement and he's not done so. So as a personal testimony to him, that's very impressive.
CHATTERLEY: He said the legal risk have dropped here -- have not dropped. He said the political risk has here. Does that matter at all? Because his
argument is your guise. You have to do it.
BLUNT: Well, here is an argument -- that is no argument. But of course, the withdrawal agreement will become a treaty and law if we pass it, and it
is then under the law that we are bound, and it would be, in my judgment, the wrong thing to do to bind the United Kingdom into an arrangement which
is -- when we're then under the legal caution eternally into the future by the terms under which we might or may not be allowed to leave the Customs
Union of the European Union.
And so who is going to negotiate a future agreement with the United Kingdom or commit their free trade negotiators to negotiate with the United Kingdom
when they have no idea when we would be able to enter into those agreements, and so this would be very damaging if we accept.
CHATTERLEY: But you could make that argument, too, if there's a no-deal exit, as well. I mean, there is still going to be the challenge of
agreeing some kind of a trading arrangement.
BLUNT: No, because -- well, it's not no deal. The deal is World Trade Organization terms.
CHATTERLEY: Of course.
BLUNT: And supporting those World Trade Organization terms at the moment have been done a litany of agreements and deals on the side to make the
passage of that if it happens entirely manageable.
CHATTERLEY: You said all along that a no deal here was better than a bad deal at this stage.
BLUNT: Yes.
CHATTERLEY: The problem is, we could see Parliament vote tomorrow to rule out a no-deal exit.
BLUNT: Yes, but the only problem for Parliament --
CHATTERLEY: Where does that leave you then though?
BLUNT: Well, the problem for Parliament is that it has legislated to leave the European Union on the 29th of March, and it is going to have to pass
legislation to override that.
The government would need to be complicit in the passage of that legislation, and if the government stands firm and says Parliament had the
opportunity to vote for the Prime Minister's agreement, knowing full well that the alternative is that we are leaving the European Union under the
law passed by this Parliament and indeed as the notice given by this Parliament to the European Union on the 29th of March.
So then they agree with the Prime Minister's agreement, then we ought to leave to the default position which is World Trade Organizations terms,
which is a deal, which is a set of arrangements underpinned which there has been a very substantial amount of work by both British and European civil
servants and others in order to prepare for that eventuality. Except the issue here is that none of that work has been properly surfaced and
presented to assuage all of the anxieties that are being pressed upon people and businesses everywhere by the consequences of this move on the
29th of March.
Because the moment you assuaging of those anxieties, the arguments for the Prime Minister's withdrawal agreement begin to fall away. Why on earth
would you go for this withdrawal agreement? It's about it. You can actually manage -- you can manage the move on the 29th of March with a new
arrangement ...
CHATTERLEY: But that, sir, a should have, would have, could have situation. We find ourselves in --
BLUNT: And then - and very importantly have a free hand to negotiate our future relationship with the European Union.
CHATTERLEY: What you say makes sense, but the problem is, we are where we are now. And should've, would've, could've doesn't help us at this moment.
BLUNT: Well, except, I am talking about the reality.
CHATTERLEY: I know.
BLUNT: These preparations exists.
CHATTERLEY: It is a reality, but the reality is also that we could get the end of this week and we could be in a situation where we don't have a deal,
we have ruled out a no-deal exit and we then decide whether we're going to postpone or not leave on March 29th.
BLUNT: And of course, these things that are out of my control as an individual Parliamentarian. I am relying on the Prime Minister being true
to what she said about -- that this is essentially -- we are leaving on the 29th of March. She has been crystal clear that that is what is going to
happen and if the Conservative Party and her government fails to deliver that on the 29th of March, then that would be the failure.
CHATTERLEY: And she should step down.
BLUNT: If we do not --
CHATTERLEY: Would you want her to step down?
[08:10:07]
BLUNT: Well, no. She has done her best in this negotiation with the European Union. The European Union, I believe have not really negotiated
in a way that would enable both sides to claim a success in negotiations, and you can see it from the attitudes, indeed of President Juncker and in
last night.
This is anyone's second chance et cetera et cetera. There is an arrogance there about the way in which it is being negotiating presented to the
United Kingdom, which also riles people.
But in the end, it's about interests and the interest of the U.K. would be best served by us having a free hand to play to construct our future
relationship with the E.U. without being encumbered by the terms of the withdrawal agreement.
CHATTERLEY: So very quickly, just to be clear, if we don't see this deal pass, if we rule out a no deal and the Prime Minister or Parliament votes
to extend beyond March 29th, should Theresa may still be the Prime Minister and the head of the Conservative Party?
BLUNT: Well, the Prime Minister survived a vote of no confidence in December. That gives her a year's free, as it were, from challenge. So
she is --
CHATTERLEY: She can't be challenged, but she could stand down.
BLUNT: The issue here for Parliament is whether or not they have confidence in her government. If they don't like the direction she is
taking it, it is open to them to vote her government out of office by voting no confidence in it. Now, I hope that our Prime Minister will stay
solid. She will ensure the United Kingdom leaves the European Union on the 29th of March, if her deal is rejected tonight, then we are leaving without
an agreement. It's World Trade Organization terms. We know what the terms are. An awful lot of work has gone into making that transition happen.
That work needs to be properly surfaced and presented, assuage the anxieties and then it will actually be revealed that this actually is a
considerably better position than her own withdrawal agreement.
CHATTERLEY: It's going to be a fascinating couple of weeks. Crispin Blunt, thank you so much for joining us on the show today.
All right, let's move on. The Irish border has been a major sticking point in the Brexit talks, but it's not all that's at stake. CNN's Christina
Macfarlane has a look at other ways Brexit could impact Britain and E.U. citizens.
(BEGIN VIDEO TAPE)
CHRISTINA MACFARLANE, CNN CORRESPONDENT (voice over): Given all the troubles Theresa May has had getting her withdrawal deal passed, you might
be expecting major upheaval soon.
But in reality, the average British person currently living in, or planning a trip to a European Union country, will notice little practical difference
in the short term except perhaps using a different line at the airport.
The same is true for European citizens traveling to or living in the U.K. Under the deal, the European Commission says visitors will be able to stay
for up to 90 days without a visa and the U.K. will reciprocate for E.U. nationals.
After 2021, U.K. travelers, like other non E.U. nationals will have to apply for a visa waiver to travel to 26 E.U. countries. At the moment,
travelers within the E.U. are entitled to reciprocal healthcare benefits. That will continue during the transition period -- March 2019 to December
2020 -- but after that, U.K. travelers to E.U. countries and E.U. visitors to Britain will need health insurance.
For the approximately one million British nationals currently working in other E.U. countries, the withdrawal agreement says that they will continue
to enjoy the same rights to healthcare benefits and pensions after Brexit.
They may be required to apply for residency permits, but will be allowed to keep their residency status for five years even if they choose to leave the
E.U. country where they are currently working and living.
Similarly, the U.K. has guaranteed the rights of some three million E.U. citizens currently living and working there. The exception to many of
these travel and work rules will be the Republic of Ireland, which will continue to have a common travel area with the U.K. Irish and British
citizens will still be able to live and work in either country. E.U. regulations outlaw cellphone users from one country being charged more for
using their phones in another E.U. country. When the transition period ends, U.K. travelers to the E.U. and E.U. visitors to Britain could face
what the industry terms roaming charges for calls and data.
The U.K. government says it plans to introduce legislation that would cap monthly fees at 45 pounds sterling, or about $59.00.
Christina Macfarlane, CNN, Atlanta.
(END VIDEO TAPE)
CHATTERLEY: Joining me now is Conservative Member of Parliament, Alberto Costa. Alberto, fantastic to have you on the show here.
ALBERTO COSTA, MP, CONSERVATIVE PARTY: Thank you.
CHATTERLEY: What do you make of the developments in the last 24 hours?
COSTA: Well, firstly, Julia, what I wanted to see is, this is what life in a free country is. It is wonderful, and I think we should be able to be
optimistic, actually, today.
Living in a free country means that we hear from people of all sides on this really important and challenging issue, and the Prime Minister, I have
just come back from a meeting with the Prime Minister. She had the meeting with Conservative MPs and she was very clear.
[08:15:07]
COSTA: She made some very important points about what might happen if this deal does not go through and my message to colleagues in the House of
Commons is this. If care about citizens, British citizens living in the E.U., E.U. nationals that live here, if you care about them, the deal that
the Prime Minister has got will guarantee their rights under a treaty underpinned by international public law. And I think if there is one
reason alone to vote for this deal, it's because of that.
CHATTERLEY: You know, you are quite infamous in the U.K. You lost your position as the result of pushing for an amendment that was adopted by
Parliament, and then lost your role, but you were trying to protect U.K. citizens living in the E.U. and E.U. citizens here in the U.K.
COSTA: Yes.
CHATTERLEY: So in light of what you just said, what happens to their rights if we don't see a deal agreed tonight?
COSTA: Well, very clearly, if the deal isn't passed tonight and we leave the European Union without a deal on the 29th of March which is the default
legal position, the rights of British citizens and there is one million of them in the E.U. and the rights of E.U. nationals here are no longer
underpinned by a treaty and by international law.
Now, we have made some unilateral pledges to E.U. nationals which is very welcome indeed, but it doesn't go far enough and there aren't -- all the
member states of the E.U. haven't yet agreed reciprocal arrangements for British citizens, so it is really important that we understand, this isn't
just about these notions of a single market, the Customs Union. This is about people and human beings' rights.
And I think there's one overriding reason to vote for the Prime Minister's deal and that is to guarantee the rights of five million innocent people,
most of whom had no voice in the E.U. referendum.
CHATTERLEY: You know, I mean, the problem is, this has been the case all the way along. There are so many rights of other people here in the U.K.
and the problem is, they are so polarized right now on what they want to see.
I mean, the upshot of what we have seen today as a result of the decision from the Attorney General is the likelihood this deal isn't going to pass.
What do you think happens this week? Because we could see a vote to rule out a no-deal on Wednesday, an extension on Thursday. Is this the most
stringent Brexit deal for those hard liners here? Do they need to get the message and have a reality check today that this is the only Brexit deal
you're getting, vote for it or lose the option potentially in the future of any form of Brexit?
COSTA: I respect the views of colleagues, whether they're from the leave side or for the remain side, this is a free country. We've got a wonderful
Parliament and it is right that we debate these issues. This is what living in a free country is all about. I want to respect the referendum
result. I voted to trigger Article 50. I voted for the E.U. withdrawal act.
My constituencies in the heart of England in South Leicestershire, for your viewers' just to know, they voted to leave the European Union and that must
be respected. But what was not on the ballot paper is how we untangle ourselves from a 45-odd year relationship. That must be done in a smart
way.
So it is not a question of is it right or wrong to leave the E.U.? It's not about that. It's about how do we leave the E.U. in a smart way.
CHATTERLEY: Do we need to extend in order to do that? Very quickly.
COSTA: You know, if I would have been Prime Minister two years ago, I would have done things very differently. We are where we are. There is a
deal on the table. I'll be voting for that it tonight.
CHATTERLEY: Should we extend?
COSTA: I will be voting for that deal tonight and I would urge all my colleagues that are viewing this now to vote for that deal.
CHATTERLEY: Yes, you're going to struggle, I think. Great to have you with us. Thank you so much.
COSTA: Thank you.
CHATTERLEY: Alberto Costa there. All right, coming up, Theresa May's new deal includes legally binding changes on the Irish backstop, but does it go
far enough to satisfy the critics? Our Brexit coverage continues after this.
(COMMERCIAL BREAK)
[08:20:00]
ANNOUNCER: This is CNN Breaking News.
CHATTERLEY: Welcome back to the show. The European Commission President is warning Britain it is this deal or Brexit might not happen at all.
Prime Minister Theresa May's new divorce deal is now armed, she says, with quote, "Legally binding changes." Mr. May insists the new changes reduce
the risk that the U.K. would be trapped in the Irish backstop indefinitely.
But today, new analysis from Britain's Attorney General disputes that saying the risk is still very much a reality.
We keep talking about the backstop and you may know it has to do with the border between Ireland and the U.K., but what exactly is it. And why are
some lawmakers so afraid of committing to it.
Bianca Nobilo explains.
(BEGIN VIDEO TAPE)
BIANCA NOBILO CORRESPONDENT, CNN: This is the Republic of Ireland and this is Northern Ireland, part of the U.K. The full 199 kilometer border that
separates the two countries is a sticking point that could derail plans for a so-called orderly Brexit. After Brexit day, this line will effectively
become a border between the European Union and the U.K.
To avoid jeopardizing trade and the peace process, both sides say they don't want a hard border here. That's a border where people and goods are
stopped and inspected. The agreement that was reached between the U.K. and Europe in November includes a controversial emergency measure called the
backstop to prevent the return of that hard border.
Here is how and when it would work. Under the terms of the agreement, the whole of the U.K. would stay in the European customs territory during a
transition period. This would run from Brexit day until the end of 2020.
During that time, a new trade deal would be negotiated and people and goods could continue to cross border as they do now. If a trade deal that avoids
the need for a hard border hasn't been reached by the end of the transition period, the backstop would then kick in.
That means from January 2021, the U.K. would automatically remain in the European customs territory and would have to comply with existing single
market regulations. Now comes the controversial part. The U.K. Attorney General says once the backstop is activated, the U.K. could only leave this
arrangement with permission from Brussels.
U.K. could, therefore, be forced to abide by E.U. regulations indefinitely without having any say in shaping them. U.K. and E.U. leaders have said
that the backstop is a measure of last resort, that neither side has any intention of activating. But for some U.K. lawmakers, regardless of their
Party, the risk of being beholden to Brussels with no way out is a Brexit that they refuse to back. Bianca Nobilo, CNN, London.
(END VIDEO TAPE)
CHATTERLEY: Our Nic Robertson is near the Irish border in Londonderry, Northern Ireland and he joins us now. Nic, great to have you with us. The
problem is, in light of what we've heard from the Attorney General this morning, nothing about the legality of remaining in this backstop have
changed. So it's tough to see the DUP, the Democratic Unionist Party changing their view on this deal in light of that fact.
NIC ROBERTSON, INTERNATIONAL DIPLOMATIC EDITOR, CNN: You know, the indications that we've had from the DUP so far indicate that they would be
hesitant, that they would want to get more interpretations about this, but I think from what we know historically about the DUP and their deep and
abiding concern is that somehow Brexit and the outcome of Brexit could make the possibility of a United Ireland a great reality.
Their concern being as part of that understanding that somehow Brexit weakens their ties to the mainland U.K. and that the backstop issue would
do that.
[08:25:00]
ROBERTSON: To hear from Geoffrey Cox today, the Attorney General saying that essentially it'd be so hard to prove that the European Union was
acting in bad faith over the backstop and over the withdrawal agreement, it is so hard to prove that point which is what Theresa May believes that
would be the mechanism for Britain to be able to pull out of the backstop. That's going to be deeply worrying and deeply troubling for the DUP and
potentially, really give them the political cover that they would need not to support Theresa May on this issue.
And I think also when you listen to what the Irish Prime Minister has said today, and we know that last night, he had some difficulty if you will,
accepting everything that was being put - everything that was being laid out by the E.U., but if you listen to his language in his statement today,
he is very clear that the Irish government as part of the European Union is doing everything it can showing good faith and good endeavors to try to
give Britain the additional understandings that it wanted.
So again the Irish, from -- you know, the Irish government is laying the groundwork for a future when potentially the British government may want to
turn around and say, "Look, you're not acting in good faith over the backstop." The Irish Prime Minister's words will have rung in the DUP's
ears that the withdrawal agreement is not being reopened and that the backstop agreement is not being diluted, it is not being changed.
So these are going to be the concerns for the DUP. These are fundamental issues for them almost, if you will, existential issues for them. So at
the moment, it would be hard to see how they can support Theresa May on this vote.
CHATTERLEY: Yes, as you quite rightly said. I mean, it's tough to define when someone is acting in bad faith. What does that ultimately mean and
look like and how do you push to get some form of arbitration to agree or to get someone backing on your side for the U.K. here, but what about more
broadly? If we're talking about the Attorney General saying, "Look, the legal risks here may not have changed, but the political risks here are
lower." What if we try and see improvement in technologies along the border? Is there anything that you could see perhaps in the assurances
that were given last night that may convince even if the legalities here don't?
ROBERTSON: You know, I think and I come back to the point again, that the DUP's position does come down to this issue of not wanting to weaken the
strength of the bond with the rest of the United Kingdom and that's going to be their guiding light and for them, it would be hugely difficult to
enter into something where that didn't - where that doesn't have legal certainty. And that's what the Attorney General has said that it
essentially doesn't have that legal certainty.
Yes, with political will and a political prayer, you can believe that there can be ways around the issue, but in the past, the DUP has wanted more
legal certainty and legal understanding, so it does seem difficult for them to make a judgment and a decision that would put faith and the legal
expectation, the legal hope that the idea that the backstop over the next couple of years by the end of December 2020, this is what Theresa May is
agreement is with the European Union that they these alternative arrangements could be made.
Everyone who has followed Brexit as closely as we all have and the audience has as well, understands that the delays and getting agreement have been
huge and monumental. We are way behind schedule already. So the notion that you could actually get an agreement on these alternative arrangements
by the end of next year that's an aspiration perhaps too far for the DUP to buy into. They are a party that believes and wants legal certainty.
CHATTERLEY: I couldn't agree more with you Nic, acting in good faith isn't enough, you wouldn't have seen it going on this long if that was the case.
Nic Robertson there, thank you so much for that. We have plenty more Brexit coverage on the way for you, plus the shocking pain of the deadly
plane crash in Ethiopia is being felt all over the world. We will bring you the latest on the crash site. Stay with CNN.
(COMMERCIAL BREAK)
[08:30:00]
ANNOUNCER: This is CNN Breaking News.
CHATTERLEY: I'm Julia Chatterley and welcome back to the special Newsroom from outside the Houses of Parliament. The U.K. Attorney General Geoffrey
Cox appears to have sunk Prime Minister May's revised Brexit deal. In legal advice published within the last hour, he said the tweaks she made to
it do not reduce the legal risk of the U.K. becoming stuck in the backstop arrangement. He is due to elaborate on that opinion in Parliament in the
next few minutes.
First let's get to Hadas Gold outside Downing Street. Hadas, we were talking earlier on that the blow that this presents to Theresa May getting
her deal past Parliament in the coming hours, is there anything do we think that Geoffrey Cox can say here perhaps to soothe the message that he gave
in the last hour?
GOLD: Well, that's the message that we seem to be hearing is that he will somehow say something that will make this statement even better, but while
reading this legal advice that he published, it was that last line that really got to you that said, "Listen, there is still a chance that the U.K.
could be stuck and still be dealing with this backstop issue," but there is the question that perhaps Members of Parliament realize that if they vote
this still down tonight, then it's almost guaranteed that there will be an extension of the deadline, that Brexit will be delayed and there is a hope
that perchance that will convince enough of the hard Brexiteers to just go ahead and vote for something, hold their noses and vote for this deal they
don't like because otherwise, as Jean-Claude Juncker said yesterday --
CHATTERLEY: That's too bad because the Attorney General, as Geoffrey Cox is actually about to speak in Parliament. Let's go to that now and listen
in --
GEOFFREY COX, U.K. ATTORNEY GENERAL: ... statement summarizes the instruments and my opinion of their legal effect.
Mr. Speaker, last night in Strasbourg, the Prime Minister secured legally binding changes that strengthen and improve the withdrawal agreement and
the political declaration. The government laid three new documents reflecting these changes in the House.
First, a joint legally binding instrument on the withdrawal agreement and the protocol on Northern Ireland. Second, a unilateral declaration by the
United Kingdom in relations to the operation of the Northern Ireland protocol and third, a joint statement to supplement the political
declaration.
Mr. Speaker, the legal opinion I have provided to the House today focuses on the first two of these documents, which relates to the functioning of
the backstop and the efforts of the parties which will be required to supersede it.
Mr. Speaker, let me say frankly, what in my opinion, these documents do not do. They are not about a situation where despite the parties properly
fulfilling the duties of good faith and best endeavors, they cannot reach an agreement on a future relationship. Such an event in my opinion is
highly unlikely to occur and it is both in the interests of the U.K. and the E.U. to agree a future relationship as quickly as possible.
[08:35:02]
COX: Were a situation to occur, however, let me make it clear. The legal risks as I set it out in my letter of the 13th of November remains
unchanged.
The question for the House is whether in the light of these improvements, as a political judgment, the House should now enter in to those
arrangements.
Let me move on to what these documents do achieve. As I set out in my opinion, the joint instrument puts the commitments in the letter from
Presidents Tusk and Juncker of the 14th of January 2019 into legally binding form and provides in addition, useful clarifications, and
implications of existing obligations and some new obligations.
The joint instrument confirms that the European Union cannot pursue an objective of trying to trap the U.K. in the backstop indefinitely. The
instrument makes explicit that this would constitute bad faith, which would be the basis of a formal dispute before an arbitration tribunal.
This means ultimately that the protocol could be suspended if the European Union continued to breach its obligations. The joint instrument also
reflects the United Kingdom and the Union's commitment to work to replace the backstop with alternative arrangements by December 2020, including as
set out in the withdrawal agreement.
These commitments include establishing, and I quote, "Immediately following the ratification of the withdrawal agreement, a negotiating track for
replacing the customs and regulatory alignment in goods elements of the protocol with alternative arrangements. If an agreement has not been
concluded, within one year of the United Kingdom's withdrawal efforts must be redoubled."
In my view, Mr. Speaker, as a matter of law, the provisions relating to the timing of the efforts to be made in resolving withdrawal agreements, makes
time of the essence in negotiating a subsequent agreement, a doctrine with which the lawyers in this House will be familiar is of legal relevance.
In my view, the provisions of the joint instrument extend beyond mere interpretation of the withdrawal agreement and represent materially new
legal obligations and commitments which enhance its existing terms.
Turning Mr. Speaker to the unilateral declaration, it records the United Kingdom's position. But if it were not possible to conclude a subsequent
agreement to replace the protocol because of a breach by the union of its duty of good faith, it wouldn't be entitled to take measures to dis-apply
the provisions of the protocol in accordance with the withdrawal agreement's dispute resolution procedures, and Article 20, which I now
refer.
There is no doubt in my view that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration
provide a substantive and binding reinforcement of the legal rights available to the United Kingdom in the event that the Union were to fail in
its duties of good faith and best endeavors.
Mr. Speaker, I have in this statement, and in the letter I have published today set out frankly, and candidly, my view of the legal effect of the new
instruments the government has agreed with the Union. However, the matters of law affecting withdrawal can only inform what is essentially a political
decision that each of us must make.
This is a question, Mr. Speaker, 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.
JOHN BERCOW, HOUSE OF COMMONS, SPEAKER: Nick Thomas-Symonds.
[08:40:01]
NICK THOMAS-SYMONDS, MP, LABOUR PARTY: Mr. Speaker, I'm grateful to the Attorney General for his statement and for the advanced sight of it. Now,
the Attorney General make clear in his original advice of the 13th of November on the backstop protocol that in International Law, the protocol
would endure indefinitely until the superseding agreement took its place in whole or in part, and he was right, because Article 178 of the withdrawal
agreement is clear that the remedy of suspension of obligations is only ever meant to be temporary to secure compliance to the agreement and not as
a gateway to a full exit.
So people quite rightly ask now, Mr. Speaker, what has changed. In her Strasbourg statement, the Prime Minister said the joint interpretive
instrument makes three changes. She said, firstly, the U.K. can challenge the E.U. in an arbitration panel if the E.U. is found in breach of good
faith and suspend the backstop, but that was already in Article 178 of the withdrawal agreement, it is not new.
The Prime Minister said there is a legal commitment that whatever replaces the backstop does not need to replicate it. But the January letter of
Presidents Tusk and Juncker said any arrangements would supersede the protocol and not required to replicate its provisions in any respect. It
is not new.
Third, the Prime Minister said it entrenches in legally binding form the commitments made in the exchange of letters with Presidents Tusk and
Juncker in January. But on the 14th of January, the Prime Minister told this House, "My right Honorable and learned friend, the Attorney General
has also written to me today confirming that in the light of the joint response from the Presidents of the European Counsel and Commission, these
conclusions would have legal force in International Law," that is not new either.
Now, I'm going to take the Attorney General at his word. Because he said in his "Mail" on Sunday interview, and I quote, "I will not change my
opinion, unless I'm sure there is no legal risk of us being indefinitely detained in the backstop," I'm going to give -- I'm going to be fair to the
Attorney General, he hasn't changed his opinion.
And let us read his advice to this House at Paragraph 19. "The legal risk remains unchanged that if through no demonstrable failure of either party,
but simply because of intractable differences that situation does arise, the United Kingdom would have at least while the fundamental circumstances
remain the same, no internationally lawful means of exiting the protocols arrangement, save by agreement."
And I do say to the Attorney General, Paragraphs 15 to 19 of his advice constitute seven sentences that destroy the government strategy of recent
weeks that sink the government's case that it got any chance of securing a right under international law to unilaterally exit the protocols
arrangements.
We've gone, Mr. Speaker from having a nothing has changed Prime Minister to having a nothing has changed Attorney General. And Mr. Speaker, in
fairness to him, it isn't just his view, it's the view of a number of other respected lawyers, including Professor Philippe Sands, Professor Sir Edward
David and the government own former counter terror watchdog, now, Lord Anderson QC.
Because the Attorney General knows that speaking about reasonable endeavors, and bad faith is one thing, but he can confirm the reality,
which is the new documents do nothing about the situation when the talks with the E.U. are at a stalemate not because of bad faith, but simply
because both sides can't reach an agreement.
Proving bad faith is extraordinarily difficult, and the Attorney General points that out in Paragraph 16 of his own advice. The strongest remedy in
this withdrawal agreement, even with this document, remains a temporary suspension. And indeed, look at his own legal advice to see that, at
Paragraph 9 that speaks of "suspension of all or parts of the protocol, including the backstop, until there is satisfactory compliance."
Mr. Speaker, trade talks can break down for a variety of reasons. For two parties to act on the basis of their own interests is not bad faith, and
the Attorney General knows it. In these circumstances, despite any assurances about the temporary nature of the backstop, the reality is that
it can endure indefinitely. Ninety-two days after the Prime Minister abandoned the first meaningful vote, in this Attorney General's view "the
legal risk remains unchanged."
Mr. Speaker, what the Attorney General was asked to do, and what the Prime Minister promised in this House on 29 of January -- to change the text of
the withdrawal agreement -- simply is not possible. He is a lawyer; he is not a magician. Doesn't this whole episode of recent weeks show that when
national leadership is required, this Prime Minister, as always, puts Party before country?
[08:45:10]
BERCOW: The Attorney General.
COX: Mr. Speaker, the honorable gentleman asks me about my opinion. Well, he knows that my opinion is that there is no ultimate unilateral right out
of this -- out of this arrangement. The risk of that continues, but the question is whether it is a likelihood politically.
I understand, Mr. Speaker that one thing we didn't hear from the Honorable Gentlemen is what the Labour Party's position was on the backstop. Do they
accept the backstop? Do they think it's a good thing? And if they think it's a good thing, why on earth are they criticizing it? Or is it just the
usual political opportunism, that one expects to hear from members of the Labour Party.
Now, let me say to the Honorable Gentleman, he says to me, there's nothing new in this agreement. That is not so and some of the authorities that he
has quoted are saying it this morning. There are material new obligations. For example, in relation to alternative arrangements, there is a heavy
emphasis now upon a swift and expedited track to negotiate them and it would be unconscionable, if having made that emphasis, having said that
time was of the essence, the European Union simply refuse to consider or adopt reasonable proposals relating to alternative arrangements. That is
new.
What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. What
this does is make significant reductions in that risk, Mr. Speaker. So I say to the Honorable Gentleman, it would be a good thing if we could hear
from the Labour Party just occasionally more than just political shenanigans, but some sincere -- some sincere engagement with the real
issues that this withdrawal agreement now raises.
The question now, Mr. Speaker, is do we assume our responsibilities as a House and allow not only this country yearning as it is for us to move on,
but the entire continent of Europe and to do that, Mr. Speaker, the time has come now to vote for this deal.
BERCOW: Mr. Iain Duncan Smith.
IAIN DUNCAN SMITH, MP, CONSERVATIVE PARTY: Mr. Speaker, can I first of all, welcome my right Honorable learned friend to his place. He has shown
absolutely that he is what he should be, an independent advisor to the government and I congratulate him for that because that is exactly what he
should be.
Can I ask him this particular question? Given the clarity of his advice, as you will know that I and others have spent some time looking and working
on alternative arrangements.
I would like to clarify exactly what force he thinks that those would be, as he said just now that they have an obligation to consider and/or adopt
such proposals, if made in a reasonable way, how does that square with this Paragraph 16 where he says, "It would be highly unlikely the United Kingdom
to take advantage of the remedies available to it is such a breach under the withdrawals agreement occurred."
COX: Mr. Speaker, and my right Honorable friend has my Paragraph 16 wrong, if I may respectfully say. What it says was I advised in the past that
that was so. What I know consider at Paragraph 17 is that the binding provisions of this joint instrument and the content of the declaration
reduce the risk that we would be held involuntarily and by bad faith. Why? Because these new provisions make it easier to facilitate an effective
claim to the arbitrator that that conduct is being exhibited.
And those are cumulative, I say that my right Honorable friend, if one has to look at the agreement as a whole, the instrument as a whole, if one puts
it all together 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 unionists agree, which is that it must aim to do this within 12 months
of our withdraw. Now, that is an important obligation because it makes time of the essence and if that deadline is passed, as any lawyer as any
legal jurisprudence on these matters relating, for example, in domestic context, the breach of contract, it means that parties must demonstrate
that they are intensifying their efforts and if they don't, they could be in breach of their best ...
[08:50:10]
COX: ... endeavor's obligation.
BERCOW: Joanna Cherry.
JOANNA CHERRY, MP, SCOTTISH NATIONAL PARTY: Thank you. Mr. Speaker, can I start by saying that I have respect and sympathy for the Attorney General,
the role of the law officer is not an easy one, particularly when he or she is a party political appointment, but must nevertheless from time to time
burst his party's political bubble in the interests of professional integrity and independence of advice and make no mistake that is what the
Attorney General has done today.
Because Mr. Speaker, today the emperor has no clothes. Not at all. Not even a cod piece. For all the yards of flannel in Paragraphs 4 to 10 of
his legal opinion, and in the statement today, it is quite clear as the shadow Attorney General said from Paragraph 19 of the legal opinion that
the legal position previously outlined by the Attorney General remains the same, so these measures very short of what was demanded by the Brady
Amendments and they fall very short of what was promised to the ERG which I'm sure will not have been lost upon them or their lawyers.
Because, Mr. Speaker the withdrawal agreement has not been changed and that the Attorney General should admit that as so is not surprising given the
weight of legal opinion about these measures overnight.
Now, Mr. Speaker, I know some Honorable members on the benches opposite would take my legal opinion for it, I am not sure why perhaps they think a
lawyer who's a member the SMP is not to be trusted, but at all events, I'm very -- I'm very -- I'm sure they will put some weight on the opinion of my
good friends Lord Anderson of Ipswich, the former government reviewer of terrorism and he has provided a detailed opinion overnight, so I hear
someone muttering from the bench that he has been paid by the People's Vote campaign, but that person ought to be aware that it is the professional
duty of any senior crime solver, given the objectives and dispassionate opinion, and perhaps, the person muttering from a satin sheet position,
shouldn't transfer their own motives to someone as honorable as Lord Anderson Ipswich.
And I'm just going to ask the Attorney General if he will agree with me on a number of points made by Lord Anderson. First of all, Lord Anderson says
the measures obtained by the Prime Minister do not allow the United Kingdom to terminate the backstop in the event that negotiations over its future
relationship with the E.U. cannot be brought to a satisfactory conclusion. That is correct. I'm sure the Attorney General will agree.
And Lord Anderson also says, these measures do not provide the United Kingdom with a right to terminate the backstop at a time of its choosing or
indeed at any time without the agreement of the E.U., so Lord Anderson is right, isn't he? There's no unilateral exit here, and then Lord Anderson
goes on to say, "That the furthest these measures go is to reiterate the possibility that the backstop might be suspended not got out of but
suspended in extreme circumstances of bad faith on the part of the European Union," which Lord Anderson says are highly unlikely to be demonstrated.
And Lord Anderson also point out that this was already apparent from the withdrawal agreement and had been acknowledged in the Attorney General's
previous legal advice.
So Mr. Speaker, does the Attorney General would agree with all those points put forward by Lord Anderson's independent, impartial and objective
opinion? And does he agree with me that in fact nothing has changed and what the Prime Minister promised has yet again she has yet again failed to
deliver.
COX: Well, Mr. Speaker, what I think will not be lost on my Honorable and right Honorable friends on this side of the House, I hope is why she is
insisting I am impressing upon them the facts and matters that she has just been drawing to their attention. It could be I wonder that there is some
ulterior motive in the Honorable Lady's concern about the absence of a unilateral exit mechanism in all circumstances. I wonder.
[08:55:07]
COX: But may I come to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect because any
anybody of his distinction should be listened to.
I do say, but I think I would take issue with some of his comments, for example, I do think and my opinion sets it out and I think other lawyers
are commenting to that effect this morning, that she does no justice to the fact that these measures and these improvements do mean that it will
facilitate in there is a reduction of risk in our being able to prove and demonstrate bad faith, but want the best endeavors and she says that we
couldn't terminate.
There is, in fact, in my opinion, a clear pathway to termination.
As she knows what I write in my opinion, is that if in the circumstance where we got a declaration from the Arbitral Tribunal, that there had been
a lack of best endeavors, having regard to the accelerating pace of negotiation, which this new agreement now imposes, then we could move to
suspend our obligations if we wish to do so under the protocol.
If that suspension was prolonged, we could invoke Article 20 to argue that it was no longer necessary because the inaction of the Union demonstrated
that they could think they must think that it was no longer necessary, and that could lead to termination. So it's not entirely true to say that
there is no way in which these provisions can be terminated, let me say to the Honorable Lady, suspension in these circumstances, is as effective as
termination, the only way in which the Union could restore that position is to come back to the negotiating table with genuinely new proposals.
BERCOW: Mr. Dominic Grieve.
DOMINIC GRIEVE, MP, CONSERVATIVE PARTY: Thank you, Mr. Speaker. I thank my right Honorable and learned friend for his statement, and I have no
reason to disagree with his conclusion in Paragraph 19, and I commend him for standing up for his office in speaking truth to power.
I do, however, have one query about Paragraph 7 of his advice. In that paragraph, he describes the joint instruments as representing materially
new legal obligations and commitments, but he will, of course, be familiar with Article 31, too, of the Vienna Convention, which says that such an
instrument can only have legal force and be binding in the sense the parties can't later alter or deny what they've agreed and it's not a treaty
in itself.
In those circumstances, is it not the case that the preaching of the best endeavors obligation in itself doesn't make no difference. The only
difference is, if there is bad faith. And that, in fact, was contained in the original agreement that we have signed.
COX: I don't agree with right Honorable friend, although as ever, I listened most carefully to him. The best endeavors duty, of course, was in
the withdrawal agreement originally. What this does is to firm and strengthen the context in which an allegation of best endeavors or bad
faith would be made because it sets an accelerated pace and it commits, I mean, my own right Honorable friend should look at it, I'm sure he will, he
has, it commits the Union to specific operational commitments about how to deliver that obligation.
Now, those are new agreements that are couched in the language of agreement, and he knows as a very distinguished lawyer, but you can't
always trust the label, you have to look at the substance.
BERCOW: Hilary Benn.
HILARY BENN, MP, LABOUR PARTY: Thank you very much, indeed. Mr. Speaker, can the Attorney General confer that in order to get to the point where the
U.K. might be able to suspend the Northern Ireland protocol, it would have to first persuade them the arbitration panel to agree with its case and
secondly, accept that any issue of E.U. law arising from the case the U.K. had argued would have to be referred to the Court of Justice of the
European Union and that any ruling of the CJ E.U. on that matter would be binding on the panel, on the E.U. and most importantly, for this
discussion, the United Kingdom.
COX: Of course I can confirm all of these things. They are self-evident in the agreement but, may I just point to the right Honorable gentleman,
though I am sure it's a clever forensic point, the circumstances in which a point of European Union law would arise in connection with the best
endeavors and bad faith clauses are difficult to ...
[09:00:10]
END
