Brexit legal advice: What does it say, how does the backstop work and would Theresa May's deal keep the UK aligned to the EU?

Brexit legal advice: What does it say, how does the backstop work and would Theresa May's deal keep the UK aligned to the EU?

The letterhead of the legal advice from the Attorney General. Image: Government library

Wednesday, December 5, 2018

The legal advice Theresa May received on the Brexit withdrawal agreement has been published, after MPs voted on Tuesday finding the government in contempt of parliament for withholding the document.

In the letter, dated November 13, Attorney General Geoffrey Cox answers the question: “What is the legal effect of the UK agreeing to the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland in particular its effect in conjunction with Articles 5 and 184 of the main Withdrawal Agreement?”

These are the key points laid out by the Attorney General.


The backstop won’t begin immediately after Brexit

The UK is scheduled to leave the EU on March 29 2019, but the Irish backstop solution would only be implemented after the transition period.

“The Protocol comes into force on the conclusion of the transition period, currently scheduled to end on 31 December 2020,” reads the text.

“[It] is intended to apply while negotiations are continuing for an agreement that supersedes it and ‘unless and until’ that ‘subsequent agreement’ is applicable.

How long would those negotiations continue? That’s the problem - Dominic Raab, Boris Johnson and others say it could be indefinite.


We will remain in a customs union, but the rules will be different in Northern Ireland

Watch: Dominic Raab tells Julia Hartley-Brewer Theresa May must 'stand up' to the EU

Implementing the backstop will mean the UK “as a whole” will be in a customs territory with the EU, which the document says is “a fiscal arrangement only”.

“The Commission and CJEU will continue to have jurisdiction over its [Northern Ireland’s] compliance with those rules, which means good can pass from NI to Ireland without any fiscal checks.

“GB is in a separate customs union with the EU, creating a single customs territory between the EU and the UK, meaning NI and GB are not in separate customs territories.

“GB is required to align with the EU’s Common External Tariff for any goods coming into the country.”


Checks between the UK and Northern Ireland can’t be avoided

An anti-Brexit sign near the Ireland/Northern Ireland border. Image: Getty

“Northern Ireland will also remain in the single market for goods - that’s not the same as the customs union. This means that “for regulatory purposes”, the UK is treated as a separate country to Northern Ireland when it comes to goods passing between them.

“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,” says the document.

That’s another sticking point - that the introduction of any checks would introduce a hard border between Ireland and the Republic of Ireland and renege on the Good Friday Agreement.


The customs union we’ll be in isn’t THE customs union

The customs union often talked about is the EU-wide arrangement, but the UK will have its own customs arrangement, as explained above.

This means that goods entering the EU from the UK will be subject to “third country checks by Member State Authorities to ensure the goods meet EU standards”.


UK must observe EU rules

“While it will not be directly bound by EU rules, GB will be obliged to observe a range of regulatory obligations in certain areas, such as environmental, labour, social and competition laws,” writes the Attorney General.


There is no legal requirement to reach a permanent solution...

Image: Getty

The Attorney General details over five paragraphs how the legal text around the backstop means, in essence that it could still apply even if negotiations between the UK and EU don’t result in a permanent solution.

“The Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement,” says the letter.


… but it is in the EU’s interest to reach an agreement

It’s pointed out that, as the checks and compliance in the new, UK-wide customs union would have to be implemented by UK authorities and not the EU, “that is is reasonable to suppose that it is not a position [the EU] will want to prolong under conditions of legal uncertainty”.


We might not be able to leave the backstop

“...Article 19 does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK-wide customs union without a subsequent agreement,” says the document.

“This remains the case even if the parties are still negotiating many years later, and even if the parties believe that talks have broken down and there is no prospect of a future relationship agreement. The resolution would have to be political.”