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Top ten horrors from the Brexit ‘legal advice’

5 December 2018

4:00 PM

5 December 2018

4:00 PM

Despite numerous attempts by the government to keep it hidden, the Attorney General’s legal advice has finally been published. The move came after opposition MPs – to whom Mr S is very grateful – found ministers in contempt of Parliament for with-holding the information.

Remember our 40 horrors of the deal? Well, Geoffrey Cox’s hotly-anticipated legal advice has some nasty surprises of its own. As ever, Steerpike has compiled the top horrors from the latest document:

1. This is not the full legal advice on the May’s deal. It is a very selective piece of advice solely on the Protocol, art. 184 and 5. So no other issues are considered. Parliament asked for the full legal advice on the deal, not just part of the deal. Where is it?

2. May’s deal envisages the UK being in backstop indefinitely. It is staggering that she sought to conceal this advice from MPs or the public. “The Protocol is intended to subsist even when negotiations have clearly broken down…. despite statements in the Protocol that it 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. It is May’s duty to inform parliament in unambiguous terms. How can she claim to have fulfilled this duty? (Paragraph 16)


3. The backstop is not an insurance. It is the expected destination. Remember when we were told that the backstop is “just an insurance”, that it was unlikely that we’d need? The legal advice makes clear that the backstop is both likely and in full contemplation of the parties (par 5). So everyone knows we are likely to go in. It is wholly wrong to for the government to pretend otherwise.

4. May says that promising to negotiate ‘in good faith’ will result in a future deal. The legal advice accepts that this phrase is meaningless. Her deal places the EU under no obligation at all. “All they [the EU] would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to “bad faith” or failure to use best endeavours.”

5. The UK will never be able to leave the Customs Union without the EU’s agreement. May’s deal “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.” And as for the time limit? Forget it. “This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.”

6. May’s deal may violate EU law. Under Article 50, the mechanisms that EU member states are allowed to leave, a transition agreement cannot be open-ended because that means it is not temporary. So this dodgy backstop might be illegal under EU law. “There may be, therefore, some doubt as to whether the proposed Protocol is consistent with EU law, and that uncertainly will increase the longer it subsists.”

7. The EU may have the power to tap the UK for even more money given the expense of the ties that will still bind us. “The legal and administrative arrangements required to underpin the Protocol would be enormously complex, particularly in the light of proposed GB / NI flexibilities and will require considerable resources. These are not something to which the Commission will readily commit in the long term.”

8. The UK has no proper legal protection so is being asked to ‘trust’ the EU. “Given the lack of any effective means of termination” to the backstop, “the UK may have to trust in seeking a satisfactory outcome from negotiations.”

9. The ‘arbitration panel’ is useless in practice (par 25 to 28) certainly when it comes to deciding if the UK can ever escape. “ 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 political as whether the Protocol is no longer necessary.

10. There is no legal protection for the UK: a solution to this (if it comes) would have to be political. But if we sign May’s deal, we are in a legally binding treaty – the EU now refuses to bend or change rules for us. It has refused every day of the negotiation. There is no basis to conclude the EU will change once we are controlled by them in the backstop.


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