The United Kingdom’s (UK) Prime Minister Theresa May reached an agreement with the European Union (EU) late on March 11 that she said gave the legal assurances on the Irish Backstop required by Parliament. However, the government’s legal representative, the Attorney General, said today said that the deal leaves “the legal risk unchanged.”
The deal achieved in talks with Jean-Claude Juncker, the President of the European Commission (EC), was a “joint legally binding instrument” that will sit alongside the withdrawal agreement that would allow the UK to trigger a formal dispute against the EU if it tried to keep the UK within the backstop indefinitely.
In addition, there was a joint statement that focused on the future relationship between the EU and UK which requires that an alternative to the backstop should be in place by December 2020.
Lastly, there was a “unilateral declaration” that states there is nothing to stop the UK leaving the backstop if discussions on the future relationship with the EU collapse with intractable differences.
This morning, 12 March, Attorney General Geoffrey Cox released his legal advice to the Government and the last paragraph of that advice is critical, advising that there are no fundamental changes to the legal position on the backstop through this latest agreement.
“However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement,” said the Cox legal advice.
The view of the Attorney General is seen as a major blow to any hopes May had of getting sufficient support in Parliament to vote for her withdrawal deal.
Cox advised that the latest agreements reduce the risk of the UK being permanently held in the backstop, but the fundamental, legally binding element to the original withdrawal deal remains the same.
The May/Juncker accord allows for a court of arbitration to rule that the UK could leave the backstop should the EU act in bad faith.
However, Cox said “I also advised that in the specific case that situation was due to the EU’s want of good faith and best endeavors, because of the difficulties of proof and the egregious nature of the conduct that would be required to establish a breach by the EU of those obligations, it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for such a breach under the Withdrawal Agreement.”
Stephen Barclay, the Conservative Brexit Minister and a lawyer, told a House of Commons Brexit Select Committee that ‘bad faith’ is defined in law and it is a question of proving that ‘bad faith’ has taken place.
“What the Attorney General’s advice says is that if there’s a pattern of unjustified delay, for example if the UK and the joint work stream on alternative arrangements [to the backstop] came forward with sensible, proportionate arrangements, linked to technology, that is provable, then the EU could not simply say we will not have any flexibility in our approach,” explained Barclay.