Brexit: what the legal advice reveals

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The Week

Six-page document released after Government found to be in contempt of Parliament

Theresa May’s Brexit plan to avoid a hard Irish border will “endure indefinitely” until the UK and European Union put in a place a new long-term trading relationship, according to newly published legal advice from Attorney General Geoffrey Cox.

The Government released the six-page document today, hours after being found to be in contempt of Parliament for failing to do so earlier.

Cox’s paper “could influence MPs ahead of the crunch Commons vote on May’s Brexit deal due on Tuesday next week”, says the Financial Times.

The legal status of the arrangements for preventing a hard border between Northern Ireland and the Republic – and in particular, the UK’s ability to extricate itself from them – “are at the heart of the political row about whether MPs should accept the prime minister’s deal”, says The Guardian.

What does the legal advice say?

A key paragraph in Cox’s formerly confidential advice “spells out that ending the so-called backstop is not merely a matter of relying on both parties to agree to do so in good faith”, says The Independent.

If the EU and the UK fail to agree that the protocol is no longer needed, “it is extremely difficult to see how a five-member arbitral panel made up of lawyers who were independent of the parties would be prepared to make a judgment as whether the protocol is no longer necessary, in the absence of the consent of the parties”, Cox writes.

Cox’s legal advice “is politically very very problematic for [the government] in terms of the ‘trap’ of the backstop”, tweets the BBC’s Laura Kuenssberg.

Cox writes that “despite statements in the [withdrawal agreement] protocol that [the backstop] is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the protocol would endure indefinitely until a superseding agreement took its place”.

The backstop would carry on “even when negotiations have clearly broken down” on a future trading relationship, Cox warns.

“In the absence of a right of termination [on the backstop], there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations,” he adds.

How have MPs reacted?

The details of the advice “are likely to inflame the concerns of pro-Brexit MPs who fear the temporary arrangements in the backstop could become permanent”, says The Guardian.

Cox argues that the “review mechanism”, painted by Downing Street as a negotiating victory, “adds little, other than procedurally, to the international law position to which the protocol is already subject”.

His paper has been described as “devastating” by Nigel Dodds, deputy leader of the Democratic Unionist Party (DUP), which props up May’s Conservative Party in government.

Dodds tweeted: “For all the prime minister’s promises and pledges the legal advice is crystal clear. In her words, no British prime minister could ever accept such a situation.”

A statement from his party said that the legal advice confirms the backstop would be “totally unacceptable and economically mad” because of its impact on Northern Ireland.

Meanwhile, Labour’s shadow Brexit secretary, Keir Starmer, tweeted: “All week we have heard from Government ministers that releasing this information could harm the national interest. Nothing of the sort. All this advice reveals is the central weaknesses in the Government’s deal. It is unthinkable that the Government tried to keep this information from Parliament – and indeed the public – before next week’s vote.”

But others including former government lawyer David Allen Green are less sure that the document adds anything particularly new to the debate.

In essence: there is nothing of substance in this advice which would not be plain just from reading the withdrawal agreement.

Anybody claiming some great revelation is merely saying they have not read and understood the withdrawal agreement.

— David Allen Green (@davidallengreen) December 5, 2018

 

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