Northern Ireland Backstop: Conditional Interpretative Declaration — House of Commons, 2019-02-21
Topic: International Affairs
Edward Julian Egerton Leigh (Conservative, Centre-right): Yes, it should be brought into the debate. There is no way a party can ignore the interpretative declaration and argue later in a court of international law that there were not aware of it or that it has no validity. It is pretty clear that this is the time to refuse to accept it There is, by the way, an argument—I do not want to get into this level of legal detail—about bilateral and multilateral treaties and letters of reservation, which I have talked about in the past. If I have talked about letters of reservation I apologise, because this would I think be a bilateral treaty with the EU, and therefore interpretative declarations are a more appropriate vehicle than letters of reservation. But I think that is almost to become too embroiled in legalisms and legal descriptions. The important thing is that the House understands that there is a way forward I was setting out the various scenarios for what might happen. Fourthly, the EU might reply that the submission of the interpretative declaration in fact invalidates the UK’s ratification of the withdrawal agreement and refuse to move on with obtaining the European Parliament’s consent so that the agreement can be fully ratified and come into force. Aside from the arguably dodgy legal grounds the EU would be on, because we would only be interpreting something that the withdrawal agreement says is the view of both parties, that—I have said this already, but I emphasise the point—would also have the effect of shifting responsibility for a no-deal Brexit from the UK on to the EU If we ratify the withdrawal agreement with a conditional interpretative declaration providing for a backstop end date, any ensuing deadlock could be ended in a single stroke by the EU simply deciding to accept the declaration. Again, it must be emphasised that under the terms of the backstop protocol it is perfectly possible that the backstop might never enter into force at all. The withdrawal agreement states that its "provisions shall apply unless…they are superseded, in whole or in part, by a subsequent agreement" Both the UK and the EU are committed to "use their best endeavours" to conclude an agreement superseding the backstop by the end of 2020, the minimum transition period. The essential purpose of a conditional interpretative declaration, then, is to achieve, before the end of the time limit, a set of trade facilitation procedures, predominantly by the extension of existing electronic customs procedures applied by the UK to imports from non-EU countries. It is vital that a conditional interpretative declaration brings the backstop to an end without being reliant upon a phrase such as, "subject to the withdrawal of negotiations". That is a very important point. I know that some in the Government have argued that we could get some sort of codicil or declaration around a breakdown in negotiations, but the trouble is that all that is subject to arbitration. The EU could argue that it was still using its best endeavours to bring negotiations to an end and that it wanted to go to arbitration. That is where all the difficulties would come in and that is why I think that the end point date is much the best way of proceeding.