Attorney General's statement on Joint Instrument and Unilateral Declaration

It is thought that the advice of the Attorney General regarding the UK's ability to unilaterally terminate the controversial Backstop arrangement may be crucial to the success or failure of the Prime Minister's Withdrawal Deal. 

The House of Commons indicated in a Brexit next steps debate and vote earlier this year that it would not approve a 'meaningful vote' on the Government's deal without changes being made to the backstop

The second 'meaningful vote' is expected this evening, Tuesday 12 March 2019.

• Watch Parliament TV: Statement from Attorney General's statement on Joint Instrument and Unilateral Declaration
• Read Commons Hansard: Attorney General's statement on Joint Instrument and Unilateral Declaration

In his statement, the Attorney general said:

"Mr Speaker. With permission, I would lie to make a statement about my legal opinion on the Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement published last night.

Last week I confirmed I would publish my legal opinion on any document that is produced and negotiated with the Union. This has now been laid before the House. This statement summarises 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 relation 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 focusses on the first two of these documents, which relate 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 endeavours 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 UK and the EU to agree a future relationship as quickly as possible. Were such a situation to occur however, let me make it clear, the legal risk as I set it out in my letter of the 13th of November remain unchanged. The question for the House is whether in the light of these improvements, as a political judgement the House should now enter in to those arrangements."

Shadow Solicitor General, Nick Thomas-Symonds, responded to the Attorney General's statement on behalf of the Opposition and said:

"Mr Speaker I'm grateful to the Attorney General for his statement and for the advanced sight of it. Now the Attorney General made clear in his original advice of the 13th of November, on the backstop protocol that in international  law the protocol would endure indefinitely until a superseding agreement took its place in whole or in part."

Nick Thomas-Symonds went on to conclude:

"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 the twenty-ninth of January to change the text of the Withdrawal Agreement simply isn't possible. He's a lawyer, he isn't 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."

What does the Attorney General's advice say?

In a three page letter to Theresa May, published 12 March 2019, the Attorney General concludes that although the new Joint Instrument and Unilateral Declaration have legal weight and reduce the risk that the UK becomes "indefinitely and involuntarily detained" in the Northern Irish enduring backstop, the legal risk remains.

He says

"If both parties deploy a sincere desire to reach agreement and the necessary diligence, flexibility and goodwill implied by the amplified duties set out in the Joint Instrument, it is highly unlikely that a satisfactory subsequent agreement to replace the Protocol will not be concluded. But as I have previously advised, that is a political judgment, which, given the mutual incentives of the parties and the available options and competing risks, I remain strongly of the view it is right to make.  
 
However, the legal risk remains unchanged that if through no such 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 remained the same, no internationally lawful means of exiting the Protocol's arrangements, save by agreement."

• Read the full letter: Attorney general's advice [external]

What is the Northern Irish Backstop

The backstop is a guarantee that whatever happens during the negotiations between the EU and UK on the future relationship, the open border between Ireland and Northern Ireland will be maintained, and the Good Friday Agreement respected. It is often described as an ‘all weather insurance policy'.

• Read House of Commons Library Insight: The Backstop Explained

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