ESC Committee - Former Brexit Secretary Dominic Raab gives evidence

Chair: Good afternoon, Mr Raab. Welcome to the Committee. I will ask the first question. In your resignation letter of 15 November, which, as it happens, was two days after the Attorney General’s letter about the indefinite extension of the backstop, you specifically stated that the proposed deal “is, at its heart, a matter of public trust.” Can you please enlarge on that in the context of the draft withdrawal agreement, which you voted against on January 15?

Dominic Raab: Thank you, Chair—it is a pleasure to be back in front of your Committee. There were two specific substantive issues in the letter of resignation that I gave.

The first related to the extent to which the Northern Ireland-specific regulatory approach envisaged would prise Northern Ireland away from Great Britain, and the extent to which I felt that was consistent with paragraph 50 of the joint report—but more generally the political design of that, and the fact that I felt it was deliberate. The second was the lack of an exit mechanism, and the idea that we would be trapped permanently in what I regard as a hybrid customs-union/single-market arrangement.

I suppose that is the rational dissection of the two key problems I have with the withdrawal agreement, but there is a trust issue in relation to, first of all, whether we have delivered faithfully on the referendum, and secondly, the political commitments that all parties—certainly the Labour party and the Conservative party—made to leave both the EU and the single market, and for us, as Conservatives, the customs union. It is about the practical implications of the deal for Northern Ireland, and for the long-term relationship that the UK has with the EU, and the more political, instinctive question of whether we have kept our promises.

Chair: What impact do you think the Brexit experience from the referendum through to today has had on public confidence in and engagement with parliamentary democracy in the UK, and what do you think are the lessons that can be learned?

Dominic Raab: How long do we have? The reality is that the public is far better informed than most people suggest. I think people knew exactly what they were voting for. That works on both sides of the debate. Also, this was a gut, instinctive vote. We often vote with our heads and our hearts in elections and referenda. I think the public knew what they were doing.

There is a predictable degree of frustration and, I suppose, anxiety about the length of time it has taken to deliver on this. Part of that is just the inherently complicated nature of extricating ourselves from the EU and, secondly, probably the way the Government have conducted it and the underlying fact that it has not been easy with a minority Government.

There are all sorts of lessons that could be learned in terms of when article 50 should have been triggered. The issue that interests me most is the conduct of negotiations, and how we can learn on the UK side from the interaction between the crucial official level of advice that we get and the political direction and leadership required.

Chair: Thank you very much.

Mr David Jones: What were the respective roles of DExEU and No. 10 in relation to setting the direction and conduct of the negotiations? It has been suggested that there was some tension there.

Dominic Raab: You will know, Mr Jones, that there was some inherent tension. I come at this probably from a slightly different point of view. I started my career as a business lawyer in the City. I had six years at the Foreign Office as a Foreign Office lawyer. I served under the Blair years, and I remember in particular as a Foreign Office legal adviser all the tensions over the Iraq war. My boss at the time, Ms Wilmshurst, resigned, so I have seen this both ways, and I have nothing but respect for the huge and vital role that the civil service does.

Equally, both then and now, I think the principle of ministerial accountability is crucial: that is, Ministers are not just signing off or ticking a box to say yes or no, but are in meaningful control of the decisions that are made, in this case in the negotiations, in order that they can go to the Dispatch Box of the House of Commons and the wider public and defend those decisions.

Some of that has been frayed by the extent of the licence given to the technical teams in Brussels—that is without any personal disparagement to anyone involved—and it is quite an important constitutional principle. A lot of practical things follow from that in terms of the effective conduct of negotiations.

Mr David Jones: I do not know whether you have seen or read the evidence that Steve Baker gave to this Committee last week, but he said to us that “we ended up with parallel process of policy development. Within the Department, Ministers led by David Davis were developing one policy and the Cabinet Office Europe unit was clearly developing another… It seems that something similar happened to Dominic Raab as his successor.” Is that correct?

Dominic Raab: It is not quite right, although I take Steve at face value in terms of what it was like during his and David Davis’s tenure. When I took the role, given the challenges there had been, I sought a number of reassurances. The first was that I would be deputising for the Prime Minister in the negotiations, which meant the day-to-day or week-by-week conduct of negotiations with Michel Barnier. That was important because, although the Prime Minister quite rightly leads the negotiations, I do not believe any Prime Minister of any political hue, however brilliant they might be, could meaningfully, substantively exercise line-by-line ministerial oversight in relation to the huge level of technical detail in both the withdrawal agreement and the political declaration. That was one thing.

The second assurance was to ensure that on the question of dual tracks, there was nothing that went to the Prime Minister that did not come either in a “one-two submission”, as it is known in the civil service—to me and then to the Prime Minister—or to me first so that I could agree it and then submit it directly up.

The point was that, however the civil service teams were configured, the Prime Minister would have the benefit at the right moment of both the political and ministerial advice and the technical civil service advice. Then at least the Prime Minister, whatever her view might be, would take a choice based on having full access to both sets of advice. I think we began that way, but it frayed from around the end of July.

Mr David Jones: Do you know why that was?

Dominic Raab: I suspect, but I do not know, and therefore I am slightly reticent about imputing intention. I suspect I took what was regarded as an overly robust line on a number of key issues, in particular including the need for an exit mechanism from the backstop. As I think I have said previously before Select Committees, I made very clear to Michel Barnier in July that we would need an exit mechanism, whether it was a sunset, a time limit or a mechanism we could control. Mr Barnier made it very clear that he recognised that it would need to be a short period of backstop, and at that point there was some pushback.

Mr David Jones: Is it the case, as Steve Baker suggests, that there was separate policy development going on in your office and in the Cabinet Office Europe unit, and that you were not aware of that other process going on?

Dominic Raab: No, it was not quite like that in terms of a parallel process of policy development, because when I took the role, in fairness, we shifted some of the negotiating team over to the Cabinet Office Europe unit. Of course, much was made at the time of the idea that that was humiliating for the Secretary of State, but in fact I readily agreed it, because what I did not want was dual track.

The quid pro quo was the process of ministerial accountability, which would ensure that I was inserted properly, in accordance with that principle, between civil servants and the Prime Minister. That was basically, from my point of view, how a coherent and effective process would work.

As often happens, the challenge is when the senior civil servant is both the personal adviser to the Prime Minister and leading a civil service team. This sounds a very boring and dry thing, but that creates problems, because you can then circumvent the ministerial line of accountability, which is not just a boring abstract principle—it is vital to the effective conduct of negotiations.

Mr David Jones: So is it the case that you were not always kept sighted of the development that was going on in the Cabinet Office Europe Unit?

Dominic Raab: I don’t know what I don’t know.

Mr David Jones: But you might have found something out later.

Dominic Raab: Well, that certainly happened.

Mr David Jones: That did happen.

Chair: I know what I do know, and that is that when the change took place, after David Davis resigned, and even more poignantly when Steve Barclay took over, it became increasingly apparent that the real decision-making centre of gravity was in No. 10. That is reflected, is it not, by the fact that the White Paper produced after Chequers was not really anything to do with decisions that had been taken in the normal fashion. Ministerial responsibility was bypassed. As I said to Olly Robbins when he appeared in front of this Committee, it seems to me that the Cabinet had been bounced.

I take what you say as you put it, but I do think there have been serious problems. We will come on to the ministerial code and the “Cabinet Manual” in relation to the Law Officer’s opinion a bit later.

Michael Tomlinson: Out of an abundance of caution, I should declare that I was a PPS in the Department for 48 hours prior to Mr Raab’s resigning, but you will be pleased to know that I am not asking about that.

Dominic Raab: He was brilliant!

Michael Tomlinson: Too brief to show brilliance.

Mr Raab, you will have seen Mr David Davis’s evidence that he believed that too many concessions had been made—his phrase was “excessive concessions”—and errors had been made in the negotiations in the early days by the UK Government. I am going to ask you about that, combined with a question specifically about strategic errors. He mentioned sequencing; I am sure you will have seen that in the evidence that he gave. Do you agree with that view? What is your assessment of his evidence?

Dominic Raab: I have always been quite careful about this, because I think it is helpful and healthy to look forward rather than back and because I don’t want to criticise anything that was done previously—it is never a particularly constructive thing to do—but I certainly agree with David’s assessment that the process and some of the compromises on process were mistaken. The sequencing was one thing. I think we could see very clearly in the joint report in December that concessions were made there. Some of the process concessions can then dictate the substantive outcomes of the negotiation.

In my view, healthy negotiation is all about exercising smart pressure through providing positive proposals that create a win-win but also deliver on the UK national interest, and doing that with sufficient rapidity that the other side is under pressure, but positive and smart pressure, to come to a mutually beneficial solution. Partly because of the sequencing, we lost that.

I also think about simple things, like why did we concede at the outset that all the negotiations would take place in Brussels? One of the EU’s big things was that we were going to be treated like a third party. I think for that reason alone we should have made sure there was a more equitable balance of the process. Little things like that can matter. I think we should probably have had some of the fights early on. I say that with great respect for the Ministers who served before I joined the Department, because I know they argued for that very strenuously.

Michael Tomlinson: I agree that it is preferable to look forwards rather than backwards, but of course this inquiry is looking backwards, specifically in relation to your role. Do you think there is anything that you could have done differently, in relation to the negotiations, given what you said about the different roles and responsibilities and who was precisely heading up what at the time?

Dominic Raab: I took a bit of persuading to take the role, because of what I understood to be the tensions. I think it was right to ask for the assurances that I specified in my earlier answer; I guess they would be exactly the same ones that I would ask for again in the same position. If they had been followed through, I think we would have had a more effective conduct for the negotiations and I think that eventually the minutes will show that.

Richard Drax: Mr Raab, I am fascinated to listen to your advice. I have huge respect for you and your position, and the position you took when you left. You were incredibly polite and diplomatic. To me, it looked like a complete shambles, and Mr Baker was clear in his evidence that there was an effort made by others in the Cabinet, of a remain orientation, to do all they could to keep us as closely linked to the EU as possible.

Did you find that, and was that a major factor in making your job extremely difficult? You were trying to do what the British people had instructed us to do and were offering positive solutions to the problems, as you just said, which of course were impossible to offer because you were being stabbed in the back.

Dominic Raab: The first thing to say is that the Cabinet as a whole benefited from having a range of advice from different points on the spectrum. My experience of Cabinet discussions on Brexit matters is that they did not divide into binary positions—“I voted leave,” “I voted remain”; it was much more nuanced than that. Actually, I found that Cabinet was the right place to thrash out the issues. This isn’t an old-fashioned attachment to Cabinet Government. I think it is an effective way of thrashing out the issues, getting the benefit of different points of view and then coming to a conclusion, which was delivered.

The problem would be the extent of the licence that No. 10 gave to the civil servant team and the extent to which it was exercised without the meaningful ministerial accountability that a Secretary of State assigned to DExEU should have been exercising. I don’t know the extent to which other Cabinet Ministers were involved in discussions to which I was not privy. I certainly have my suspicions, but I don’t know, so I will only talk to what I know.

Kate Hoey: Mr Raab, you obviously used the backstop in your letter as a very important reason why you resigned. There wasn’t any time limit on it and no way that the UK could withdraw after a certain period of time—three to six months. Looking back at it, how much were you involved in any discussions about the Northern Ireland-Ireland border, or were you not directly involved because it had all got to that stage before you came in? When did you suddenly pick up and think, “Hang on. This is not right”?

Dominic Raab: When I joined, we were still having the debate between whether or not there would be a UK-wide approach for customs purposes, and that battle was won. I always thought that it would be won, but the price for it would be two things: first, the extent and scale of Northern Ireland-specific regulation without representation; and, secondly, we would be expected to see the argument about finality to the backstop, whether it was a sunset or an exit mechanism that we could control. I raised that in the very first meeting that I had with Michel Barnier. In fairness, we had lots of detailed discussions internally within the Government about it.

You are right that I arrived at a certain point in time when a lot of work had been done. I certainly didn’t feel that it was beyond repair. In fact, the biggest frustration was the failure to take the opportunity in July, when Michel Barnier had accepted to me that he recognised that the backstop would need to be short.

The truth is that there are all sorts of elaborate arrangements in there for regulation and all the rest of it, but if you are only talking about a short space of time—I will let the other interested parties, including the DUP, speak from themselves—it is less of a practical problem. What mattered was whether it was going to be an indefinite period or whether it would last for more than six or nine months.

Kate Hoey: You raised this yourself, didn’t you, with Simon Coveney, the Irish Deputy Prime Minister?

Dominic Raab: Yes. I think it was on 30 October. It was in a private meeting that was then made public by the Irish side.

Kate Hoey: I know that there was some controversy over that.

Dominic Raab: There is no controversy about this. There was on the Irish side, because they feel very much locked down. It is very clear what happened.

I was asked to have a private meeting with Mr Coveney, whom I hold in very high regard. I explained to him some of the options for how this can be dealt with in a win-win way, because I realised the political constraints on him, and a totally skewed version of that was misreported, picked up by the Taoiseach and presented as the offer that was made. Frankly, either he did not check with Simon Coveney or he knew it was not a fair representation of the discussion I had. Either way, it was not very helpful to the Irish or the UK side.

Kate Hoey: Your reputation was unsullied after the event, but perhaps it shows more about the relationship between the Taoiseach and the Deputy Taoiseach. At the same time, is it true that the Minister for the Cabinet Office, David Lidington, was also speaking to the Irish Government and saying something slightly different about the backstop?

Dominic Raab: I spoke to Mr Coveney on 30 October, more or less. I know that the Foreign Secretary had breakfast with him the next day, and the line that we both took was as near to identical as Cabinet Ministers can be expected to take. I am not confident that the same message was imparted by the CDL when he saw him a few days later.

Kate Hoey: That must have worried you.

Dominic Raab: We come back to the process point. I was not going out on a limb—I had spoken to the Prime Minister and No. 10; I had explained and it had been agreed that we needed to go into bat on this issue. We were a long way on from July at that point; it was October so we had missed the October Council. It was an opportunity to get resolved the single most important roadblock to getting a deal.

I would have thought it was only correct that a line agreed would be consistently adhered to by the Cabinet. I certainly found the Foreign Secretary to be absolutely meticulous in doing that.

Kate Hoey: Between these four walls—I am aware that the Brady amendment was passed in Parliament and the EU have said they will not reopen the withdrawal agreement—do you feel that there is still a chance that we will get that changed?

Dominic Raab: I think it is difficult to judge. Let me put it this way: even if it is 50:50 or slightly less than that, it is worth a go. We should test the sincerity, good faith and pragmatism of the EU side. I have always argued in front of this Committee and elsewhere that I would favour a deal. I still would; I think we should press to the 11th hour and beyond to get one. Equally, I do not think we should hand the EU a veto over our departing the EU or allow them to dictate or craft the terms on which we do it.

Kate Hoey: You mentioned a WTO or no-deal situation. Looking back, do you remember any discussion about how we might have to consider leaving with no deal—or did it not get to the EU until more recently that this might be something we would consider? My idea of a negotiation is that you go in and say, “We’d love to work with you and we’d love a deal, but we can leave without one.”

Dominic Raab: We had always argued, domestically and publicly, that no deal was better than a bad deal. Again, I had made it very clear in Brussels and had written to Martin Selmayr at the end of August, I think, asking that he lift the block that the Commission had on discussions between both the EU and the UK, and member states and the UK. In fairness, that block was inconsistently applied, because discussions were already going on. It struck me that a sensible contingency plan, away from the public eye and separated from the negotiation, was to have those discussions, so we could mitigate the risks for both sides—European jobs and livelihoods for UK jobs and livelihoods.

He replied in October, “No—let’s just focus on the withdrawal agreement.” That is a matter of public record. I thought that was disappointing. I talked to Michel Barnier about that. I said, “I don’t want this to eclipse things.” I always gave Michel advance warning when we did our technical notices on no-deal planning, because I did not him to be flustered by that or to think that we were trying to play hardball or doing anything other than a responsible job of contingency planning.

At the same time, I thought that most of the residual risks that we cannot control of departure without a deal are either accentuated or magnified by not being able to have a sensible conversation with the EU, if they just say, “We are not going to play ball with you at all; we are not going to engage in sensible co-operation.” It seemed to me worth at least trying to remove that block, for both sides’ interests. It was very clear that Martin Selmayr did not wish to do that. I can only assume—I don’t know—that that was a negotiating pressure tactic.

Kate Hoey: Finally, do you share my optimism, and the optimism of many, many people who have looked into it in detail, that there is no need for a backstop—that there are solutions if there is good will?

Dominic Raab: As I said to the Northern Ireland Affairs Committee, I certainly do not think that this backstop is fit for purpose. It is designed as a high-level legislative alignment method of dealing with the undoubted issue on the border, whereas there are all sorts of technical operational ways of dealing with that problem.

It feels to me—I think it is pretty transparent, actually—that this was part of a political tactic to peg the United Kingdom into being bound by a whole swathe of EU rules, well beyond the customs union, into single market territory. There is no doubt in my mind that that was the aim. I do think there is a need for a backstop, but I guess the way I would put it is that there is a big difference between the one proposed, which is legislative high alignment, and an operational technical backstop, which I think none of us would do anything other than agree to.

Chair: In the context of what you have just said, let us bear in mind the conclusion to the Attorney General’s advice, which, as I pointed out, was produced on 13 November, just two days before you resigned. You will note that he says that ultimately, after you weigh the risk “against the political and economic imperative on both sides to reach an agreement,” this is “a political decision for the Government.”

We anticipate, from what we can gather, that he will give some further advice on the question of the backstop and the indefinite time that it may extend to. If the decision, as you just implied and as he said, is primarily a political one, would it not be really quite absurd for us to be in a position where we were faced with wording that gave an impression that was not justified by the substance?

In other words, are we actually going to leave or are we not? Are we actually going to have effective termination under the backstop or not? I am reminded of Alice in Wonderland: “Words mean what you choose them to mean. The question is who is to be master, that is all.” Would you like to comment on that? Not just on Alice in Wonderland.

Dominic Raab: I might swerve the Alice in Wonderland metaphor, though I understand exactly the point. There are two points. First, I thought it was extraordinary that the legal advice stated that GB was going to be treated as a third country from Northern Ireland for regulatory purposes. From memory, it is paragraph 8. That was one of the most striking things, which I do not think has been picked up on. It is an extraordinary thing. People have questioned whether it was consistent with the Belfast agreement and the principle of consent. I think there is a huge question mark about whether it was consistent with paragraph 50 of the joint report. That is, I suppose, at a constitutional level.

Chair: You are referring, of course, to paragraph 8 of his advice.

Dominic Raab: Yes—sorry. The question whether the Government can come back with a change without opening up the withdrawal agreement is really not a complicated one as a matter of international law. Every undergraduate textbook will point this out. If you want to have a statement of interpretive declaration, if you like, it can be legally binding or it can be hortatory—a political declaration. It is all in the language.

You will recall that we had a similar debate when David Cameron came back with his deal from the EU that preceded the referendum. A lot of the language was hortatory. I think we will have exactly the same again. I say “I think”; I am guessing that if we go down that avenue, we will have some sort of interpretation of the existing language—tempering and good faith—in relation to the existing withdrawal agreement, and the question will be whether it changes the substance.

As a matter of public international law, it is very difficult for an interpretive declaration, unless it uses very strong, legally binding, mandatory language, to change the terms of the withdrawal agreement. Whether we have a protocol to the protocol, whether we have some form of—in my experience, the term “codicil” is never used in relation to treaty making. It is a trust law mechanism.

Chair: It is usually effective only on death.

Dominic Raab: If you read Ian Brownlie, or any general textbook on public international law or treaty making, it is not something that is generally used. This may be a rather technical word, but it is really rather meaningless. The question is: will the language legally amend, and be intended to legally amend, what is in the withdrawal agreement? If not, it is useless.

Chair: One last point—just to get this on the record, for the purposes of this session. Is it not also true that references in the Attorney General’s advice to an international agreement are not the correct construction? Although he may anticipate that it would become an international agreement, the one certain thing at the moment is that the withdrawal agreement has not been signed, or even initialled, and could therefore at the moment be said to be no more than a piece of paper.

Dominic Raab: Normally, as a matter of treaty law, under the general customary principles of public international law, and also under the Vienna convention, those who sign a treaty should then proceed, in good faith, to ratify it. I think that this arrangement is rather different. In any event, the point you make must be right.

 Chair: The very last point I want to make is on the Comprehensive Economic and Trade Agreement-type joint interpretative instrument. In fact, it is rather apples and pears, because CETA, the Canadian arrangement, was very much to do with trading and things of that kind, whereas here we are dealing with deep political and constitutional issues about leaving and not leaving and about the constitutional nature of Northern Ireland and so forth.

When dealing with an attempt to get wording that might have the effect of massaging the problem and avoiding the substance of the issue, as you have indicated, making a comparison with the Canadian experience is not very sensible. Would you tend to agree with that?

Dominic Raab: Yes. All these agreements are dependent on their terms, but the basic principles and pillars of international law are relatively straightforward: you have to go back and change the legal language in the text. That can be done by some sort of appendage, which you would normally call a protocol, by an interpretive declaration or by an exchange of letters. Exchanges of letters can be political and/or legally binding, but I think you have to be very careful on whether that would be consistent with the EU’s internal constitutional requirements.

Mr David Jones: On that point, is it your understanding that a legally binding interpretive document would have to be agreed by the EU27 in Council?

Dominic Raab: It seems to me very difficult to see how an agreement, such as the withdrawal agreement and the protocol, that has been agreed through one process could be amended by a shortcut process.

Mr David Jones: On that basis, it is really no more difficult to reopen and reword the withdrawal agreement to that extent than it is to get the agreement of the entire EU27 on an interpretive document.

Dominic Raab: On the EU side, it is fair to say that we cannot have anything signed off without a further European Council, in which case it seems to me that the proper thing to do is to go through the correct constitutional requirements.

Geraint Davies: Have you received any independent legal and other professional advice, other than from the Law Officers, that we either have to be in a joint customs union with single market alignment, to avoid a hard border—as would be the case with a hard Brexit or no deal—or that, if we have a deal with free access, we will not be able to control immigration, so that either way there is a fracture in the Brexit argument?

Dominic Raab: No, I have never received that advice.

Geraint Davies: How do you respond to the idea that, if we are not in a customs union and do not have single market alignment, we need to have a hard border? Secondly, how do you respond to the idea—

Dominic Raab: In Northern Ireland?

Geraint Davies: In Northern Ireland. How would you respond to the second argument that, if we have an open border, we cannot control immigration, or goods going in or out?

Dominic Raab: Well, we had the common travel area, including Northern Ireland and the Republic, since well before—

Geraint Davies: But that is because we are in the EU.

Dominic Raab: No, it is from before our membership of the EU.

Chair: It was 1982, I think you will find.

Dominic Raab: So I think it is possible. I think the answer lies in practical and technical arrangements. However, no one is suggesting that the border would not be enforced for goods or animal checks. It is a question of whether it would be enforced at the border. I take the advice of Jon Thompson, head of HMRC, on that point.

You have touched on one point, Mr Davies, which is very interesting. We talk here about models such as the customs union, Norway, the single market. The EU—I am only talking about my experience—does not divvy up in the same way. Therefore, whenever I have talked to Michel Barnier or the technical teams in Brussels about the customs union option, it has always been merged with the single market option.

By that I mean that if we had what I think some people in this country understandably think would be the optimum of the customs union arrangement, without free movement, the EU would regard the four freedoms as indivisible. Therefore, one of the reasons why we should be careful about the backstop, as currently configured with no exit mechanism, is that the second half of the negotiations will not just be the EU trying to patch up the bits of the single market that are not covered by our pitted hybrid version of the customs union and the single market: I think they will come directly for free movement.

Geraint Davies: If Northern Ireland is not in the backstop—is not in the customs union and single market alignment—and there is an open border, what is to stop products like hormone-impregnated beef coming into Britain and crossing the Northern Ireland border into the EU? Does the EU not have to have a hard border to stop us exporting all sorts of stuff that we would be required to after Brexit?

Dominic Raab: That is an analogue answer to a digital problem in a digital age. If you look at most global practice, rather than solely EU practice, given the flow and scale of trade, you would have intelligence-led checks. You do not need those checks to be at the border. There is quite a lot of scope, with the tagging of cargo and freight, to make sure that the integrity of assignments has been checked at the point of departure and that there has been no tampering at the point of arrival. That does not need to be done at the border.

In lots of these areas, there is no question but that you need checks, but I come back to the point that you do not need them at the border. To take a concrete example, if you go to the Port of Larne in Northern Ireland, which I have been to, already in relation to animal checks, something like 10% of the animals that come through the Port of Larne are taken off for a proper check, so it is intelligence-based. It works very well within the rules and very effectively in terms of practice.

Geraint Davies: So if a tariff is imposed by the EU on the border of its customs union on a product that arrives in Britain without a tariff, for argument’s sake, what is to stop people bringing it into the EU via Northern Ireland, if there is an open border?

Dominic Raab: There are plenty of other global examples of what I would describe as reasonably porous borders for trade flows where there is a degree of intelligence-led policing, but they do not have the kinds of problem at scale that you have described. It depends what you are talking about.

The vast majority of the trade flow between Northern Ireland and the Republic—I say the vast majority; a big chunk of it—are small businesses that are very well known with very predictable trade going up and down both ways. I do not think you would see over time that it would be possible for them to continue doing that in a way that evaded any of the rules that you have described. I think it would be fairly straightforward to manage that, and they do in other borders around the world.

Dr Whitford: Following up on that, obviously the idea of checking at the company that is exporting and then checking at the receiving company can be done, but would that not end up with us having to employ an awful lot more inspectors and customs staff than when they were all on one site? They could be anywhere in the Republic, the North of Ireland or the UK, so you would end up with a less visible cost if you were going to have customs inspectors roaming around the UK.

Dominic Raab: It can be digitised—in fact, I have a company in my constituency that works on the tagging that can be done, so that the integrity of the consignment as it leaves as compared with when it arrives can be checked digitally. I am sure there would be a requirement to have personal checks done at warehouses or other different distribution points, but you would have a digital system with intelligence-led manual checks as and when, which is perfectly practical.

Again, there are other people with greater knowledge on global trade practice, but there are plenty of other precedents where this works in a fairly straightforward way.

Dr Whitford: But you are just saying “checked”. I don’t mean “checked” by the company themselves; I mean “checked” by an independent person, which is what would be happening at the border.

Dominic Raab: No, but it wouldn’t be. The vast majority of consignments going through any international border, with the kind of scale of trade flows that I think we are envisaging—they won’t be checking every consignment. They would have an intelligence-led approach and, you know, a fraction of them are checked.

Dr Whitford: I totally accept that. It’s just that if you are doing it, even if you are only doing it in 5% of cases, it is still vastly cheaper to be doing that in one place than to be doing it right across the United Kingdom and randomly visiting companies across the Republic and—

Dominic Raab: I am not sure you would need to do it in a random way. You could have distribution points; they just wouldn’t need to be at the border. They seem to do rather well elsewhere—if you look at the Swiss border, or at the challenges in North America, or you look elsewhere around the world.

Again, I think that technology is our friend in relation to a lot of this. I take your point—you need to have a careful cost-benefit analysis of this, but I think there will be fairly fine margins. The point is you don’t need any infrastructure at the border to make this work.

Dr Whitford: Although obviously North America and Switzerland have significant infrastructure at their border.

Dominic Raab: But there are very few checks for the vast majority of consignments, which comes back to the relative cost burden. I think you are right to raise this question about the relative cost burden, as to where it is, and I don’t think the geography of where those checks takes place is a major saving. But I’d have to look at the cost-benefit analysis of it. 

Dr Whitford: Considering that obviously the Irish backstop is where all the pressure and disagreement is—particularly on the Government Benches: people who support Brexit but are happy with a backstop, or not happy with a backstop—may I ask at what point you were made aware that this was being included in the draft withdrawal agreement? And where did it come from? Was it a suggestion of the UK Government from No.10, or did it come from the EU?

Dominic Raab: It was obvious straight away that the backstop issue was in play. Of course, we always felt on the UK side that the Chequers proposals were designed to resolve this issue in relation to the future relationship, through the alignment with the common rulebook for goods and also with the facilitated customs arrangement. So the UK attempt was to say, “This is why we need to get on to talking about the future relationship”. Obviously, by the time I had arrived, that was very much in play.

In relation to the backstop, the question of whether we needed a UK-specific or a Northern Ireland-specific backstop had been going to and from, I think for weeks before I had arrived. Indeed, if you look back to the December joint report, that was really at the crux of that. So it was very obvious that this was an issue.

I have talked to David Davis since and I have seen what he said about this—that the necessity of a backstop in terms of a legislative high alignment backstop, and I made the distinction earlier, as opposed to an operational backstop that gave reassurances of no return to a hard border. That didn’t come from me; I’m not aware it came from the UK side, certainly not with my knowledge. And I’m confident David Davis says the same. 

Dr Whitford: So was it there when you came into post, or did it come in after?

Dominic Raab: There was already shuffling of texts to and from, in relation to this issue of whether the customs arrangement should be Northern Ireland-specific or UK-wide. On our side, we were very keen that it was UK-wide, in order to protect the economic integrity of the United Kingdom as a whole.

Dr Whitford: And obviously you feel that there are both technical and digital solutions. The Irish backstop is only meant to come in if a solution isn’t found. If you have such confidence in the alternative arrangements, do you not think that you can therefore support the backstop because you believe it will never be needed?

Dominic Raab: There is definitely going to be a backstop used if we continue with the kind of arrangements—it is very obvious, because by the end of the implementation period there won’t be the future relationship ratified as a treaty. I have never heard anyone give practical advice that thinks—we might be able to conclude the text of it, but it wouldn’t be ratified by then, which means that we will obviously have a backstop.

That is why the exit mechanism is so important. My view, for what it is worth, is that it has been configured that way to put pressure on us in the negotiations. So, no, I wouldn’t take what I felt was—I’m not using the language—a “hit and hope” approach, and think, “Oh well, we’ll never have to use it.” There is no doubt in my mind that we will not wrap up, in terms of entering into force, the future relationship as a treaty before the end of the implementation period. I have never had any advice that has suggested that we could do that, if only because of the ratification procedural requirements on the EU side.

Dr Whitford: But obviously it is that gap that the backstop is meant to cover. Therefore, do you really think that the technical and digital solutions would be in place to avoid a backstop, if you don’t even think that the trade agreement will be there to avoid a backstop? Do you understand why people are afraid of having a gap between actually getting to a trade agreement and having no cover for the Irish border?

Dominic Raab: I totally understand the concern about a gap, but equally I am confident that within the 18-month, or whatever, implementation period, with not just technological solutions but goodwill from Dublin, Brussels and London, we would work out a way technically of avoiding any extra infrastructure at the border. I am confident that could be done.

For the record, my personal view—and this was the proposal I put to Mr Coveney: it is not rocket science—is that we should have a review mechanism, which would begin after three months, four months or six months, and at the end of the period, whether it was a month, or whatever, it would only continue with joint agreement. That would give the UK a sense that we wouldn’t be perpetually in it, but that we would only exercise, unilaterally, the ability to pull out of it, once we hit the condition for the exercise of that exit. We would be providing reassurances on all of the operational technical elements that I have described.

That has the advantage of not having a deadline, which the EU has been very resistant to. It would tell the United Kingdom side that we would not be trapped with an EU veto over the future relationship and stuck in indefinite limbo, but it would give Dublin the assurances—and they could be legally binding assurances—that we would work with them and not exercise the withdrawal right that we have at the end of the new mechanism until we had put in place the technical proposals.

Dr Whitford: Though only being able to continue it with agreement implies that if the UK didn’t agree at the end of a review period they could walk away. While the solution that you are proposing does depend on digital and technological, it has to be said that public development of digital solutions to big problems has not always been terribly quick.

Dominic Raab: You are absolutely right about that, Dr Whitford. I think the answer would have to be that we would exercise the unilateral right, but we would have to do it based on the assurances that we have given, and at some point—I can’t remember who asked it—this becomes an exercise in trust and good will.

But at least if you have the clear track towards the exit—the clear means of providing the assurances—and you depoliticise it in that way, and it genuinely becomes a question of technical, practical and operational good will, I think over the course of the implementation period we have enough time working with Dublin to put that in place. It would almost take the heat out of this issue.

The truth is, I think, that the backstop does not get passed in the House of Commons without a means by which we can exit it. I know of no democratic country in history that has ever signed up to a regime that abdicates so much democratic control to an international organisation without representation, without the means of coming out of it.

Dr Whitford: And you do not see the backstop as the assurance that you want to give. So you don’t want the backstop; yet you feel there would need to be an assurance that the UK would not unilaterally use the review process to leave.

Dominic Raab: No, I don’t think that is quite accurate. I am all for a backstop. I want it to be an operational backstop, not a legislative high-alignment backstop, because one solves the problem and the other one is trying to hook us into abiding by a whole bunch of rules for extraneous political reasons. That is, crudely, what I think is going on.

Chair: Just to nail this question of where it came from, the question of the nature of the backstop, as it now is, is really something I have heard repeatedly from radio, television and the rest, as being a proposal that came from the United Kingdom Government. Now you have just said—I think you have said—that that is not the case, but I am hearing over and over again from the Brussels end of things, “This was all a proposal put forward by the UK Government.” When we had Olly Robbins here in front of the Committee, I ventured to suggest that it was a very stupid idea. If it came from the Government, that is one thing, but did it come from Brussels? Can you throw any more precise light on this?

Dominic Raab: I always, if I may say so, thought this was a slight distraction. The idea came from the joint committee report in December. The paragraphs in there were then the building blocks on which the concrete proposals for the backstop worked.

On the UK’s side—I am confident that this was David Davis’s view, and it was certainly always my view—in terms of where the initial idea came from, we would prefer an operational rather than legislative high-alignment backstop. Then, as the ideas were batted to and fro, it is true to say that the UK went back and said, “Okay, this is what we are insisting on. We would consider a UK-wide customs approach—legislative alignment.”

Then there was the separate question about what you do with other Northern Ireland-specific regulation. At that point, different proposals were batted to and fro, and we go to where we got to. The original insistence on a legislative alignment backstop clearly came from the EU.

Chair: Thank you.

Stephen Kinnock: Good afternoon, Mr Raab. Do you see the Malthouse compromise as a credible alternative solution?

Dominic Raab: Yes.

Stephen Kinnock: I was in Brussels with the Exiting the European Union Committee on Monday. We met with Mr Selmayr and Mr Verhofstadt. They made it absolutely crystal clear that the negotiations on the withdrawal agreement finished on 25 November. It is a done deal. It is closed. It is not going to be reopened. They see it as Pandora’s box, which, as soon as they reopen it for one issue, will lead to a whole range of other issues being raised by other member states. In light of what they have said, do you still see the Malthouse compromise as a credible proposal?

Dominic Raab: I think it is a credible proposal in the sense that it provides answers to the problems that we have. That does not mean that it will be accepted on the EU side. You will forgive me if I do not take at face value your record of what has been passed to you by our EU interlocutors, because my previous experience was that you put to me that Michel Barnier had said that the Chequers proposals were dead in the water. It subsequently became evident that he had not said that.

Stephen Kinnock: We can certainly have a discussion about that. I paraphrased what he said in the meeting, which was then absolutely confirmed.

Dominic Raab: It is very clear from him and from the transcript that you put it to him that the proposals were dead in the water and he said that that was not correct—in fact, he went on to say some rather positive things about it. All I am saying is: forgive me if I treat rather lightly your first-hand record back to me of what EU interlocutors have said to you, given my previous experience before you in Committee.

Stephen Kinnock: Sure, I understand what you are saying, but in fact my interpretation of what happened in that meeting with Mr Barnier was entirely correct, because the proposals that were on the table—

Dominic Raab: Mr Kinnock, it was roundly rubbished and you were actually engaged in political posturing. I am happy to take any further questions you have.

Stephen Kinnock: Thanks very much; I am certainly happy to take a lecture from you on political posturing. The comments that Mr Selmayr and Mr Verhofstadt gave us are both on and off the record—it could not be clearer.

Just to get into this concept of what is a credible proposal and what is not, how can it be that the Malthouse proposal is credible, if it is not considered to be credible by the European Union?

Dominic Raab: With the greatest, again, respect, the negotiations will be conducted not through Select Committees—either this one or the Exiting the European Union Committee—but between principals. At every stage of the negotiations we have had some of the—what shall I call them?—more intransigent figures in Brussels give fairly tough lines, but that is part and parcel of negotiation, as you well know.

The reality is, in my view, that the EU has a choice to make. One thing the House of Commons has done, quite rightly, is give a very clear message that we need some legally binding changes to the withdrawal agreement, particularly in relation to the backstop. I think the Malthouse proposals provide a sensible template for that. They are fairly contained and focused. It is not a case of re-writing everything. With such changes, I think this deal will pass in the House of Commons, but without them, it won’t. Therefore it is decision time for the EU, in the same way that it is decision time for the United Kingdom.

Stephen Kinnock: The focus of the inquiry is learning the lessons of what has happened over the last couple of years. Surely, one of the lessons that we should learn is that when the EU has said something, it has meant it. One hundred per cent. of the way, the British Government have said, “Well, they would say that, wouldn’t they?” or “Well, they’re just playing politics,” or “Well, they’re just posturing,” or whatever phrase you may wish to choose.

But in fact, that is precisely what has ended up happening. All the way through, anyone who has tried just to point out that that is the reality of the negotiations has been accused either of talking the country down or of being a naysayer. In fact, the lesson to be learned from all of this is that when the EU says what it means, it means what it says. Would you not agree with that?

Dominic Raab: No. I think that there were a variety of tweets and off-the-cuff remarks from the Salzburg conference, where off-the-cuff remarks were made and a number of other senior figures across Europe came back and said, “Hold on, that is not correct and not helpful.”

That is part and parcel of the negotiations—you get press conferences, tweets and comments relayed via Select Committees, in order to toughen up the position. That does not accurately reflect the substantive negotiating position, not least because the EU is not one homogenous whole—nor is the Commission, indeed. It has a whole variety of different views and even more so when you spread that across European capitals.

Stephen Kinnock: Can you give a substantive example of where the EU has said something of importance—say, for example on the backstop or whatever issue you may choose—that has not, in the end, ended up being precisely the position that the British Government have had to accept?

Dominic Raab: It was being bandied around that we would pay £100 billion in the finance settlement; it is now £39 billion, so that is one example.

Stephen Kinnock: Okay, thank you very much. On the issue of the backstop, last week Sabine Weyand said on the record that negotiators had “looked at every border on this earth, and every border the EU has with a third country—there’s simply no way you can do away with checks and controls.” Do you think that is just empty rhetoric as well?

Dominic Raab: I heard an interesting anecdote—I will have to protect its source—whereby the point was made to UK officials at a very senior level that, given the porous nature of the border on the Mediterranean and the finite length and nature of the challenges on the border between the Republic and Northern Ireland, if the situation in the Mediterranean borders was tolerable, it was not beyond the wit of man and woman, with the goodwill of the Irish and British Governments, and the Commission, to resolve that problem. I will respect the integrity of how I learnt about that, but I think it rather addresses Sabine Weyand’s concern.

Stephen Kinnock: Thank you very much. A final question: on the assumption that some sort of deal passes between now and 29 March, clearly, we would have to pass the EU (Withdrawal Agreement) Bill in order to be able to leave the European Union. Do you think that it is possible or credible to do that without having to have an extension beyond 29 March?

Dominic Raab: That looks very challenging. Whether it is physically possible will depend on how much you are willing to extend the sittings. At this point I am open minded—or, at least, not opposed—to the possibility of a modest extension by, let’s say, a week or two, if we had an acceptable to deal for the United Kingdom, in order to put through the relevant legislation. I do not think that is going to be the deal-breaker on our side.

Stephen Kinnock: Thank you very much. Thank you, Chair.

Chair: I want to turn to the question of the ministerial code and Cabinet manual, and the very important and extremely clear statements in them on taking the opinions of the Law Officers. We have had a lot of correspondence, and I have had many exchanges with the Prime Minister over this, both on the Floor of the House and in the Liaison Committee. I would like to ask you a straight question on that. Given the importance of these issues, why is it, do you think, that we are left with one opinion, dated 13 November, which is described anyway as being an evolving text—or, at any rate, describing the advice as being based on an evolving text? It seems to be absolutely astonishing. Would you not agree as a lawyer in your own right that when you are dealing with matters of this importance, and the legal issues that arise, it is astonishing that a legal opinion was not sought on the many questions careering through the system over the last few months, or that the advice might not have been offered? Can you throw any light on that? It seems an astonishing state of affairs to me.

Dominic Raab: First, on the point of principle, I think it is wrong to publish the actual legal advice. I say that as a former Foreign Office lawyer. What we really want is the most candid and robust legal advice given to Ministers and the Prime Minister of the day. It is perfectly acceptable—we had a similar debate during the Iraq war—for a summary of the legal opinion to be given in order to clarify the issues in which Parliament is rightly interested. But I want to preserve the space for Attorney Generals to give as candid and clear advice as possible without fear or favour. That is my personal view, although I obviously respect that Parliament has decreed, or demanded, otherwise.

On the second question, within that umbrella, that safe space, legal advice was solicited and provided all the time. I spoke to the Attorney General regularly—

Chair: In written form as well?

Dominic Raab: Yes.

Chair: This is where the problem lies. We have a very clear resolution of the House of Commons, where the issue of contempt was raised and dealt with by resolution of the House. I took part in the debate, and the motion itself quite clearly specified the full and final legal advice with regards to the withdrawal agreement. So far, we only have this one letter, which is couched in rather vague terms. You tell us that there is a lot more, but it does not appear anywhere, despite the fact that the House of Commons—whether you like it or I like it, whether the Government like it or otherwise—clearly stated in that resolution that the advice must be published. Where is it?

Dominic Raab: That was the last piece of formal advice that was provided, and it preceded my resignation. I cannot speak to any further evolution of it subsequently. Previously, a whole range of advice was provided to me but, more than often, I would call the Attorney General, to formally ask him to come up with solutions or to bounce ideas off him, so that every step of the way what we were doing was couched in the clear understanding of the legal implications and—putting aside the rights or wrongs of demanding to see legal advice in public, as I said—Ministers could give clear statements to the House of Commons about what the position would be, so that Parliament and the public had a very clear view of the position without it being subject to suspicion and all the rest of it. But I don’t know what was provided after my resignation.

Chair: I am not quite sure about the timing of this question in relation to what you just said, but one thing that was clear to me as a former shadow Attorney General and as someone who is very interested in this question of a Law Officer’s opinion was that, first, you would expect them to be there and to confirm what they are and, secondly, there is one fundamental question—which I raised at the beginning, on 9 July actually, after Chequers, and several times since with the Prime Minister—which is the compatibility of section 1 of the withdrawal Act, which got Royal Assent on 26 June last year, with the withdrawal agreement. They are incompatible. You cannot say, on the one hand, we will repeal the 1972 Act and, on the other hand, have a withdrawal agreement that under article 4 and various other parts of it quite clearly invades that space. The withdrawal agreement itself is not a signed document, it is not an international treaty and it has not in fact been endorsed by an Act of Parliament. So we are in this strange position. One would have expected that at a very minimum the Attorney General would say, “It is impossible to reconcile those two positions.”

Dominic Raab: I have not seen the formal advice from the Attorney General in relation to the Bill, but I think it was inevitable, or at least highly likely, that the EU withdrawal Bill and Act were passed before the negotiations on the implementation period were concluded. It is that bit of the negotiations that required what in layman’s terms would be regarded as a saving clause that brings the dilemma that you have raised into focus. I don’t think it is surprising that we have had that challenge. When the EU withdrawal Bill was brought through the House of Commons, I was asked about this. I was brought on to the Bill team from the Ministry of Justice. I remember it being discussed, but I don’t have the details in front of me to be able to address any more of that.

Chair: Are you now telling me that there is no opinion anywhere in the archives or anywhere in the correspondence between the Ministers, the Prime Minister or anybody to try and give a legal answer to that very simple question?

Dominic Raab: I am sure there must have been legal advice. Whether it came from the Attorney General or otherwise, I could not say off the top of my head.

Kelvin Hopkins: Good afternoon, Mr Raab. There has been some disquiet that Cabinet Ministers might not always have had access to the full range of papers, information and so on in sufficient time to make informed decisions on Brexit. Our Chairman, Sir William, was sufficiently concerned to write to the Prime Minister about it. During your time as Secretary of State, were you content that information required to enable Ministers to make informed decisions on Brexit matters was always made available to them in a timely manner?

Dominic Raab: Speaking for myself, when I got information it was always in a timely manner.

Kelvin Hopkins: Secondly, could the process of disseminating information to Ministers have been better handled, and would it have made a difference to the conduct or outcome of negotiations?

Dominic Raab: You would have to ask other Cabinet members. I know that some of the disquiet you have described was felt more widely. As the Secretary of State for DExEU at the time, getting the papers on time and having enough time to read them was not really the issue.

Kelvin Hopkins: One thing comes to mind, from before your time as Secretary of State: in the Chequers discussions over the weekend, the actual paper setting up the document was not provided to Cabinet members until late in the weekend with not enough time to read it. Was that the case?

Dominic Raab: With respect, Mr Hopkins, I was not there at the time, so I cannot answer that question. The obvious illustration that I can point to is paragraph 23 of the political declaration, which was changed at the last minute effectively to make the backstop the frontstop. There had been a lot of debate around that paragraph, and I was very surprised to see it change the night before the epic Cabinet meeting that we had the day before my resignation. That is the only example I can think of where something clearly had changed substantively without my knowledge, let alone my agreement.

Kelvin Hopkins: I accept your position, but, as to Chequers, there was a lot of press comment. Clearly, some Cabinet members were leaking what had happened and that was something we were worried about.

Richard Drax: On the point about legal advice, from what some Cabinet Ministers have said and continue to say—shall we say on a remain-orientated nature?—it seems they are sometimes ill informed. At the Cabinet meetings that you sat at, which lasted—I don’t know—half an hour, an hour, presumably they did not have the detail that you had. When you were there, did you find that you were surprised at the lack of depth of knowledge on such an important issue when Cabinet Ministers were speaking to the press and the public beyond the collective responsibility of the Cabinet?

Dominic Raab: Of the two biggest Cabinet meetings that went on, the one on no-deal planning, which was in September, I think went on for three hours. The one on the deal the day before I resigned was five hours. In relation to either of those meetings, I don’t think anyone was unsighted. Indeed, I think arrangements were made to make sure that all the papers were disseminated, and time was allocated for a proper chance to read the papers in advance. In relation to broader issues that arose, you would have to ask the other Cabinet members. All I know is that as Secretary of State, the receipt and consumption of material was not the problem.

Richard Drax: My point is that the information that comes out about how we are all going to hell in a handcart, and planes will not fly and all the rest of it, has to come from somewhere. As we now know, a lot of the information we have been given is just not true.

Dominic Raab: Well, there are leaks, and that is entirely reprehensible and a clear breach of the civil service, and indeed ministerial, code. In relation to the technical notices—if I am correct, we put out 106 notices over the period between August and October—all of those were checked at ministerial level. In my case, I would check them two or three times and push back where I did not agree, or test assumptions. The scare stories have not been derived from those 106 technical notices; indeed, they were designed to inform, advise and reassure. The scaremongering has come from leaks or from non-governmental sources. I think that is correct.

Chair: We are running a little short on time with the next witness waiting, but there is one question that I do want you to answer, if you would be kind enough. It relates to the issue of laws. We are discussing this with you as the European Scrutiny Committee, and since the 1970s, this Committee has been involved in the scrutiny of laws coming from Europe. Every single law that comes through comes to us after it has been through the Council of Ministers, during the process of discussion and negotiation. Those laws then become the law of this country through section 2 of the European Communities Act.

The trouble is that under the transitional period, it is clear under article 4 of the withdrawal agreement that we are going to be faced with laws that are made by a majority vote of the other 27 member states, or by consensus between them, behind closed doors without a transcript, so nobody will know the basis on which it has all been done. For a period of maybe up to three years, this country is going to have laws imposed on it that are made by other countries. Never before in the entirety of British history—to use your analogy—has this ever been done.

The question I ask is what you really think about the idea that we should allow this as a principle during this transitional period. It will also create vast uncertainty for business, because the rulebook and, indeed, the whole of our legal system is going to be affected by the decisions that are taken. They are going to impose laws on the United Kingdom, and the degree, surely, to which the business community is going to be affected by changes that may make us very uncompetitive might put us at the mercy—in my opinion, will put us at the mercy—of our competitors. What is your reaction to that, and do you think that it is justified under any circumstances? If so, what are they?

Dominic Raab: The only point I would disagree with you on, Mr Chairman, is that you said it would apply for three years. Unless we get an exit from the backstop, it could be indefinite.

Chair: I said “for at least three years”.

Dominic Raab: I stand corrected. There is the optimist in you, Mr Chairman, but what I am worried about is that—

Chair: I am on the record as saying I think it could go on indefinitely.

Dominic Raab: That is what worries me. It is entirely indefensible, both in principle and in practice.

Chair: So you would find yourself in a position of simply having to say that this withdrawal agreement, for the reasons you have given during this session and, in particular, the control over laws as well, makes this a no-go area. This withdrawal agreement is substantially defective for those reasons, and perhaps some others as well.

Dominic Raab: This was the basis on which I resigned, so of course I would vote against it.

Chair: Thank you very much indeed, Mr Raab. We have to move on now, because it is nearly 3.45. You can catch up with Suella Braverman later.