What legal advice Tories were forced to publish says about the backstop
THE Government was yesterday forced to publish the six pages of legal advice that Geoffrey Cox, the Attorney General, gave the Cabinet about the customs backstop. Ministers were forced to publish the advice after being found in contempt of parliament following a historic vote in the Commons on Tuesday. The DUP said the advice was “devastating”, while Tory Eurosceptics said it was significantly at odds with the Government’s public statements on the backstop.
The backstop is indefinite and will continue even if talks break down
What the Government said:
In the Commons, Geoffrey Cox conceded that the backstop could be “indefinite” but repeatedly insisted that the backstop is a “temporary solution”, adding: “That is written into the agreement.”
The Government has insisted that it will be in the interests of both sides to break off from the backstop.
What the legal advice says: In his six pages of advice, Mr Cox said under “international law” the backstop will “endure indefinitely”, even if talks break down and there is no prospect of a deal.
He said: “It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down.
“Despite statements in the Protocol that it is not intended to be permanent ... in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein.”
The advice says that the backstop is “by no means consistent with EU law” and is not something Brussels will want to “prolong”. However, it says these factors are “unquantifiable” and must be “weighed” against the fact there is no legal means of breaking off from the backstop.
Leaving backstop will result in ‘protracted and repeated’ rounds of negotiations
What the Government said: Mr Cox said in the Commons that if the EU deliberately obstructed negotiations, it would represent a “breach of good faith”. He said it is a “meaningful legal obligation”.
Stephen Barclay, the Brexit
Secretary, has described the good faith clause as a “safeguard” and insisted it would deny the EU “some sort of veto on the process”. What the legal advice says: The legal
advice states that the bar for demonstrating that the EU is acting in bad faith is likely to be high and would be easy for Brussels to disprove.
The result, Mr Cox says, could see Britain become locked in “protracted and repeating rounds of negotiations” as it tries to leave the backstop. It says: “All they would have to do to show good faith would be to consider the UK’S proposals, even if they ultimately rejected them.”
The ‘arbitration panel’ does not have the power to end the backstop
What the Government said: The Prime Minister has repeatedly highlighted the role of the independent arbitration panel in policing disputes during backstop.
Downing Street highlighted the role of the panel when Emmanuel Macron, the French President, threatened to keep Britain in the backstop if it refused to allow European fishing vessels into its waters after Brexit.
What the legal advice says: The advice is clear that the arbitration panel’s role is likely to be strictly limited. It says that the “remedies” available to the panel do not include “termination of all or part of the agreement”.
Its powers are instead limited to “suspending” parts of the agreement, with a view to getting both sides back around the negotiating table. The advice is also clear that the panel would not be prepared to make a judgment on whether the backstop should come to an end.
A regulatory border in the Irish Sea
What the Government has said: In her Mansion House speech in March, the Prime Minister was explicit that it would be “unacceptable to break up the United Kingdom’s own common market by creating a customs and regulatory border down the Irish Sea”.
Under the backstop, Mr Cox said in the Commons that the UK would enter into a customs union with the EU forming a “single customs territory for goods for fiscal or tariff purposes”.
He added that Northern Ireland “would additionally apply defined aspects of the EU’S Single Market rules on electricity, goods and the EU customs code.”
It is ‘by no means consistent with EU law’ and is not something EU will want to prolong
What the legal advice says: The legal advice is clear that there are likely to be significant regulatory barriers.
It says that while Northern Ireland will remain in the customs union with the EU, the UK will form “a separate customs union”.
The advice states that although the UK will remain a “single customs territory”, goods going from Great Britain into Northern Ireland will be subject to regulatory checks. It states: “The implications of NI remaining in the EU Single Market for Goods, while GB is not, is that for regulatory purposes GB is essentially treated as a third country by NI for goods passing from GB into NI. This means regulatory checks would have to take place between NI and GB, normally at airports or ports, although the EU now accepts that many of these could be conducted away from the border.”