Brexit secretary Stephen Barclay has admitted that the UK could remain indefinitely within the backstop despite the changes secured to the withdrawal agreement.
Speaking before the Exiting the EU select committee, Mr Barclay said the UK could only be trapped in the backstop if Europe acts in “bad faith”, something many Brexit MPs feared could happen.
Moments before Mr Barclay entered the committee, Geoffrey Cox’s legal advice was released online, suggesting that “the legal risk remained unchanged”.
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Answering committee chair Dominic Grieve MP, Mr Barclay said: “The point is, to be trapped in the backstop the EU would be acting in bad faith, and there is the ability where if the EU acts in bad faith the consequence is the backstop would be subject to arbitration.
“If the EU acted in bad faith we would suspend initially and then if that suspension was not remedied we would be able to terminate the backstop.”
Mr Barclay was however forced to admit that the UK would have to prove an accusation of “bad faith” before an arbitration panel, and said if the panel ruled against the UK’s accusation then the backstop would not be suspended.
'Nothing has changed'
Attorney General Geoffrey Cox's legal advice suggests the "risk remained unchanged" to the UK being indefinitely held within the backstop.
Brexiteer former Cabinet minister John Whittingdale suggested the Attorney General's advice was "pretty terminal".
He told Mr Barclay that the advice "reads very much as if nothing, actually, has changed".
Mr Barclay said: "I don't accept that because one has got to look at this as a package, not in isolation.
"I accept the point that if both sides are negotiating in good faith, that is what the final paragraph (of the Attorney General's advice) is referring to and therefore there will need to be an arrangement."
But he said there "has been a strengthening" in protections against the EU acting in bad faith to "trap" the UK "and the Attorney's advice recognises it".
The Brexit Secretary told Mr Whittingdale: "It does not go as far as you would like, I accept that. But it does allow for this issue of bad faith and the UK being trapped, and that is the issue that politically kept coming up in the Chamber."