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Brexit: Northern Ireland Backstop

Volume 795: debated on Tuesday 19 February 2019

Question

Asked by

To ask Her Majesty’s Government what proposals they are currently putting forward to the European Union to replace the backstop in the European Union Withdrawal Agreement; and what is the estimated impact of each such proposal on the annual value of goods crossing from Northern Ireland to the Republic of Ireland.

My Lords, the Prime Minister has set out three ways in which legally binding changes to the backstop could be achieved. First, the backstop could be replaced with alternative arrangements to avoid a hard border between Northern Ireland and Ireland. Secondly, there could be a legally binding time limit to the existing backstop, or thirdly, there could be a legally binding unilateral exit clause to that backstop.

My Lords, obviously this is an important week as there is a big delegation of Government Ministers in Brussels. It would be helpful if the noble Baroness could tell the House why we are not looking at an alternative which involves using the Belfast Good Friday agreement, the institutions set up by it and the treaties under which it has formed, as part of a solution rather than as part of the problem. I fear that we will end up with a proposal coming back with a codicil or something that is ultimately of little value, and in that case we run into severe difficulties at the end of next month. Is the department prepared to look seriously at a meaningful alternative, rather than tinkering with questionable legal niceties?

The noble Lord raises a very important point. First of all, the Government are utterly committed to supporting the Belfast agreement and all that that stands for. The Government have set out a range of commitments to Northern Ireland, including a strong role for what we all hope will be a restored Northern Ireland Assembly and Northern Ireland Executive. This will mean that the devolved institutions in Northern Ireland will have a strong role, both in any decision to bring the backstop into effect and in its operation if it does come into effect. I repeat that we are committed to upholding the Belfast agreement and will do everything in our power to avoid a hard border between Northern Ireland and Ireland.

My Lords, the noble Baroness repeats phrase that the Prime Minister used last week, of looking for a,

“legally binding unilateral exit clause”.—[Official Report, Commons, 12/2/19; col. 731.]

I saw in a brief this morning an alternative phrase—it seemed nonsensical—which is “a joint interpretative document”. Since I understand that any legally binding agreement has to be legally binding on both sides, a unilateral clause—which is not, therefore, legally binding on both sides—seems incompatible with something that is legally binding. Can the noble Baroness explain this paradox?

I do not want to be drawn into a labyrinthine analysis of legal niceties. What I can see is that in general law of contract and of agreement between separate legal entities, it is possible to lay out a future pattern to which both parties agree. If one of these future patterns were that the UK should have a unilateral right to withdraw, that could be incorporated within a binding agreement, as I understand the position. I am not an international lawyer—Glasgow conveyancing was about as far about as it got—but that is my broad understanding of the general position.

My Lords, when the Government and the House of Commons voted for the Motion calling for the replacement of the backstop, what was the Government’s understanding of the meaning of “replace”?

As I have already indicated to the noble Lord, Lord Empey, the Government were very clear from the vote about what the House of Commons found worrying and troublesome about the backstop as currently structured. As I said in my Answer to him, there are three possible options to resolve that dilemma.

My Lords, will the Minister assure the House that any proposal put to the EU for replacing the backstop will protect the constitutional position of Northern Ireland within the United Kingdom and the integrity of the United Kingdom and ensure that there are no barriers, economic or otherwise, between Northern Ireland and the rest of the United Kingdom?

The Government have been very clear about two things. One is that we respect the integrity of the United Kingdom: we have been very clear that we do not want any form of hard border. The backstop would effectively provide a customs union of which the UK would be part, and that would protect Northern Ireland and the Republic’s activities as well. We are in these negotiations, and I repeat the Government’s commitment to avoid a hard border and to support the Belfast agreement.

My Lords, I would not dream of tempting the Minister into the labyrinth. However, because of the importance of these matters and the anxiety that continuing uncertainty about the backstop is causing to so many people, even beyond this House, will she clarify whether it is still the Government’s policy to ensure a legally binding change to the withdrawal agreement over the backstop—not just an exchange of letters or assurances but a legally binding change to the backstop? As we are told that my opposite, the Attorney-General, is closely involved in negotiations and will soon set out his legal tests to ensure that the backstop cannot be used to trap the UK, will she please tell us a little more?

I fear that my answer is bound to disappoint the noble Baroness: I apologise in advance for that. Let me say by way of introduction that the Prime Minister has been very clear that she is investigating a negotiation in which we can achieve legally binding changes to the backstop. That is the Government’s position. Where do we go from there? We are in negotiations. The Attorney-General and the Cabinet Secretary were meeting the EU last night and the Prime Minister is to meet President Juncker tomorrow evening. These discussions are at a vital stage and we shall have to await their outcome. I understand that the Attorney-General will propose in due course to make a statement about the progress that has been made, and I cannot pre-empt that.