The devil in the ‘backstop’ detail
It is only on reading the Attorney General’s legal advice about the implications of the Northern Ireland “backstop” in the Brexit deal that the true enormity of what the Government has agreed to becomes apparent. Geoffrey Cox QC gave a frank assessment of what it entailed in the Commons on Monday, but failed to prevent his fellow MPS deciding that the Government was in contempt of Parliament for refusing to publish the advice.
But while Mr Cox’s explanation to the House was candid, it was not comprehensive. It was not apparent, for instance, that in the absence of a trade deal, there would be customs checks between Britain and Northern Ireland. How can it be acceptable that companies in England could not send goods to another part of the country without checks?
Moreover, for as long as there is no long-term agreement, the Northern Ireland Protocol, intended to ensure no hard border, would remain in place after the end of the transition period and for as long as talks take. After that, without a further deal, Northern Ireland would stay in the customs union and EU single market while the rest of the UK diverged.
In addition, if the EU considers the talks to be dragging on for too long, it can seek a ruling from a committee of lawyers to end the protocol so that Northern Ireland stays in the customs union with Britain outside.
The Attorney General observed that the Government had sought to negotiate a unilateral termination mechanism but this was rebuffed by the EU. That was the point when Mrs May should have walked away from the table. Her difficulties stem from the decision to agree this backstop last December as a means of moving the talks forward.
Senior Cabinet ministers who have since left the Government claim they were misled about its ramifications. With the Government dependent on the votes of the DUP, for whom this matters more than anything else, Mrs May has been snookered.
It is also the case, as Sir Bill Cash pointed out yesterday in the Commons, that this legal advice does not fulfil the contempt motion which called for the immediate publication of “the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship”. So far we have had only the advice as it relates to the backstop. Where is the rest of it?