5 December 2018

The Brexit legal advice confirms Leavers’ worst fears


Brexit negotiations have been an Odyssey. Currently, if we are to believe the official Government legal opinion on the Northern Ireland backstop, the ship of state is plotting a perilous course between Scylla and Charybdis.

We now know what the Attorney General’s advice to the Prime Minister has been, as the six page text has been released after going through more wrangling than a Victorian laundry. The underlying thread is that the backstop, if triggered, fits into a negotiating environment where both parties are expected to cooperate to generate something better. The core issue at stake is: what if that doesn’t happen?

This is a critical question. Especially given that, after the transition period, the UK loses its key levers, particularly the money that the deficit and debt-laden EU budget so badly needs from us. The Irish government meanwhile has a territorial claim on Northern Ireland, even if it has been tippexed from its constitution. The EU has a hundred other fish to fry. It’s entirely possible that its interpretation of its obligations to deliver on a subsequent deal may be looser than the British government’s.

Looking at the text of the advice, the problem clearly vexed Mr Cox. After touching tangentially on Britain becoming subject to “a range of regulatory obligations” in areas that also incidentally happen to be the worst generators of red tape (and which one presumes has been shelved well beyond the reach of the author to officially explore), he digs into the “indefinite nature of the Protocol”. What happens, he ponders, if both parties, pursuing their best endeavours in good faith, cannot reach a superseding arrangement “within a reasonable time, or indeed at all”?

The starting principle would appear to be that the backstop only applies so long as both parties are genuinely negotiating. But the Attorney General then declares that the principle becomes less clear the more you dig into it. A particular problem is the inclusion of the caveat of “unless and until” as guiding its duration.

Worse, negotiations may no longer be proceeding in the assumed good faith. In international law, the opinion states, the backstop would still stand until it is replaced. The Withdrawal Agreement itself does not, meanwhile, compel the EU to reach such an agreement.

Or to put it another way, the treaty text means the EU has the UK over a barrel. Even if relations have degenerated to such a state that there is a full trade war going on, Northern Ireland is locked into the EU’s orbit.

When discussing the potential release of the document, the author contended that it was not likely that the backstop would last because of its Single Market dynamics – it was a bit of a square peg in a round hole. One should caveat that with the precedent that shows the Commission managing highly irregular pegs in the past with respect to Algeria, Cyprus, and East Germany.

In the Cox text, it similarly suggests that there will be increasing opposition to Northern Ireland’s status from business competitors based in countries with reduced access to GB markets. However, this not only overestimates the Province’s physical capacity for economically absorbing investment on such a Herculean scale (especially while still constrained by subsidy and competition rules under the Commission’s jealous remit), but it also is rather dependent on the UK significantly diverging away from EU regulatory systems to make such an investment worthwhile. This has, disappointingly, not been highlighted as a UK Government ambition – indeed, quite the reverse.

In any event, the suggested end consequence in the advice is that (through what we might describe as a form of inevitable legal and administrative entropy) the EU will be encouraged to seek to sunder the GB customs side of the future arrangement from the Northern Ireland side – confirming the threat feared by Unionist critics of the arrangement. Because of the arbitration panel format, the dispute will then be left in the hands of lawyers, when in essence it is a political one.

Meanwhile, the issue of ‘”good faith” looms ever large. While these principles in the deal are clearly expressed in unambiguous legalese, they do not require the parties to set aside their fundamental interests, merely to reflect on the alternatives. In the EU’s case, the Protocol as it stands delivers on what might be interpreted as its core interests by avoiding a tangible border. If the UK were to then complain that the EU was not properly cooperating to find a substitute, all the EU need ever do would be to consider the UK’s proposals before rejecting them.

“This,“ Mr Cox observes, “could go on repeatedly,” since it would be down to the UK to somehow demonstrate wilful intransigence. Short of leaked emails, I would suggest it’s not clear how this might be achieved, or given what was demonstrated earlier even what this subsequently gains.

“In conclusion,” he summarised, “the current drafting of the Protocol […] 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. 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.” (This, in turn, obviously cannot be guaranteed.)

Intriguingly, the advice is dated 13 November, suggesting it may have been a rush job for distribution in advance of the Cabinet meeting. Was it actually then circulated, or sat on and left for the author to comment on under his own steam? In any event, the author declines to comment on the then-unknown end date of the transition (the infamous year “20XX” that appears in the 15 November draft text) other than to note it had not yet been settled. This much is a concern, but I would however also focus on an additional element that surprisingly doesn’t feature in the analysis.

I would suggest the very absence of an escape hatch increases the importance of Article 18 of the Protocol. This is the Safeguards Clause, which does allow either party to take unilateral measures “if the application of this Protocol leads to serious economic, societal or environmental difficulties liable to persist, or to diversion of trade.” I’m not aware of this section receiving the attention it is due. It allows, in emergency scenarios, either party to suspend either in part or whole the protocol.

In the first instance, it provides the Commission with the very stick it could deploy if the Province starts to look as competitive as Mr Cox’s unconvincingly suggests, allowing it to stifle any areas perceived to be gaining competitive advantage. But the issue is far bigger than that. It’s a question of potentially deploying it over “serious societal difficulties”.

Article 18 in effect generates a Civil Disturbance Charter. It introduces a clause in the treaty that does allow for the UK to legally suspend, and in effect bin, the Protocol – but it first requires (and thus one day alarmingly may encourage) mass rioting in Northern Ireland for a Government to trigger it.

While there are caveats, those caveats are breachable. Annex 10 requires in particular a one month notification period before action, but this can be bypassed in “exceptional circumstances requiring immediate action”. The requirement to minimise measures taken is subjective. This leaves the text open to state abuse if good faith evaporates, but only by generating a doomsday scenario.

This is clearly not what the drafters intended. In the worthy cause of seeking to keep the peace in Northern Ireland, ultimately I fear the Protocol may supply the match to reignite conflict.

Dr Lee Rotherham is Director of think tank The Red Cell, Executive Director of Veterans for Britain and Chairman of the appeal to establish a Museum of Sovereignty. He was Director of Special Projects at Vote Leave.