The prospects of Theresa May’s Brexit deal passing now hinge on what risk there is of the UK being trapped in the backstop against its will. A compelling new legal analysis by Policy Exchange suggests that this risk is significantly lower than thought. Written by three distinguished lawyers—a professor of international law at King’s College London, a former first parliamentary counsel and an Oxford professor—the paper makes clear that the new protections on the backstop have greater force than appreciated.
First, the ‘good faith’ obligation in international law is more meaningful than thought. The bar for proving that the EU is not acting in good faith is such that if the EU only advanced solutions to the backstop that involved the UK—or Northern Ireland—staying in a customs union then it would be at ‘very serious risk of breach’ of these obligations.
Second, the UK’s unilateral declaration, which has legal force unless the EU objects to it before it is laid, makes clear that the UK understands the backstop to be subject to the UK’s obligations under the Good Friday Agreement. This is important because there is a strong argument that if the backstop were to become permanent it would undermine the Good Friday Agreement, north south cooperation would have been replaced by UK/ EU cooperation.
Now, the nature of international law means that few things have no risk attached to them. But the risk of the EU keeping the UK in the backstop to force it to agree to things it doesn’t want, as Emmanuel Macron suggested it would back in November, is clearly now negligible.