The Attorney-General’s advice

• United Kingdom

• Brexit
• Financial services and markets regulation

06-12-2018

After being the first Attorney-General to be found in contempt of Parliament, Geoffrey Cox’s advice to HMG, specifically the advice on the NI protocol (also known as the backstop), has been published.

Its key conclusion is that in the absence of an agreement to replace the "backstop", the arrangements will continue with no legal means to end these without the agreement of both sides. While the advice recognises this risk it invites the government to weigh that against the political and economic imperative for both sides to reach an agreement which creates a politically stable and permanent basis for their future relationship.

In other words, the potential political calculation here is that maintaining the "backstop" in circumstances where talks on a future relationship would have broken down, with the implicit consequence that at least one of the parties would be put in a position of having to comply indefinitely with legally binding obligations which it no longer considers acceptable, would be an unsustainable proposition.

Given the adverse political consequences for EU-UK relations under such scenario, it is one which both sides would be keen to avoid. This again, points to the likelihood of one or both sides softening (further) their initial "red lines" in seeking to agree on a new permanent future deal.

Speculation that the advice may have contained some kind of “smoking gun” is not born out by the text of the advice.

The key points of the advice:

the protocol creates a regulatory border in the Irish Sea (para 8):

"between NI and Ireland without any checks and, therefore, any hard border. The implications of NI remaining in the EU Single Market for Goods, while GB is not, is that for regulatory purposes GB is essentially treated as a third country by NI for goods passing between NI and GB, normally at airports or ports, although the EU now accepts that many of these could be conducted away from the border".

despite containing statements to the contrary, at international law the protocol will endure indefinitely (para 16):

"It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, 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, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in interactional law the Protocol would ensure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein. Further, the Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement."

there is no unilateral means of escape from the protocol and the EU could continue negotiations indefinitely without giving rise to bad faith or failure to use best endeavours on their part (paras 29-30):

"But such conduct on the part of the EU would be highly unlikely; all they 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, which would require clear and convincing evidence of improper motive and wilful intransigence."

"In conclusion, the current drafting of the Protocol, including Article 19, 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."

the only way out of the protocol is political, not legal (para 33):

"Conclusion

Finally, in considering any international agreement, it is important also to take into account the changing political context in which it is to operate and that the solution to any essentially political question is rarely wholly or even predominantly legal. In the absence of a right of termination, there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations. This risk must be weighed against the political and economic imperative on both sides to reach an agreement that constitutes a politically stable and permanent basis for their future relationship. This is a political decision for the Government."

To read the Attorney-General’s advice, click here.

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