Customs deals and legal traps – everything you need to know

Q What is the legal advice?

A Geoffrey Cox, the Attorney General, has drawn up secret legal advice that warns that the UK could be trapped “indefinitely” in a customs union after Brexit.

During negotiations with the EU, the UK accepted the need for a “customs backstop” that would kick in if the Irish border issue could not be resolved. Under the backstop, the UK would remain in a customs union with the EU for an unspecified period.

Mr Cox’s advice triggered a Cabinet revolt and contributed to two Cabinet ministers resigning last month.

Q How can the UK end the backstop?

A The Prime Minister abandoned plans to secure a “unilateral” right to exit the backstop during negotiations with the EU after being met with resistance by Brussels.

She instead agreed that the backstop would come to an end when a deal was struck on the future relationship between the UK and the EU.

The EU Withdrawal Bill states that both sides must show “best endeavours” – equivalent to good faith – towards securing a future agreement. If Brussels proves obstructive, the UK is able to make a formal request to the joint committee to bring the backstop to an end.

Q What is the issue?

A The Government has secretly concluded that the term “best endeavours” is not legally enforceable.

In a letter to the Prime Minister, Olly Robbins, her chief Brexit adviser, said it did not place the EU under any direct legal “obligation”.

As a result, the EU is entitled to ignore any ruling based on “best endeavours”, meaning the UK could be trapped in the EU indefinitely.

Q What does the Government say?

A Ministers argued that the EU would be as keen as the UK to end the backstop. They also claimed the UK would enjoy a “competitive” advantage, as the backstop would give the UK access to the customs union while controlling free movement.

Q Will the legal advice be published?

A No. The Government will instead publish a “position” statement summarising the advice while not setting it out in detail. It claims the legal advice is privileged.

Q What are MPS saying about it?

A MPS on all sides of the House have accused the Government of contempt of Parliament, which could lead to a minister being suspended.

They have argued that Mrs May is being hypocritical and highlighted the fact she previously described the Labour government’s refusal to share the Iraq War advice with MPS as a breach of the ministerial code.

‘The EU is entitled to ignore any ruling based on ‘best endeavours’, meaning the UK could be trapped’