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Tuesday 28 March 2023 Dublin: 8°C
# christmas comes early
The secret Brexit legal advice has been published in full
MPs suspected that the Attorney General’s private advice to the PM would be much more scathing than the published summary.

Letter sched UK Gov UK Gov

THE UK ATTORNEY General’s legal opinion on the current Brexit deal has been published, after the House of Commons voted in favour of making it public.

MPs had argued that Prime Minister Theresa May would be held in contempt by not publishing AG Geoffrey Cox’s analysis in full ahead of the crucial vote that will be held in the House of Commons next Tuesday, 11 December.

The six-page long document was published today after over 300 MPs voted yesterday to publish the document, despite it being common practice to keep legal advice to the Prime Minister private.

Wanting a well-rounded knowledge before voting on May’s Brexit deal, and looking at the exact legal obligations backstop provisions in the deal places on the UK, are among the reasons why MPs wanted the document published in full.

There were also claims that the summary published by 10 Downing Street is a “watered down” representation of the harsh criticism from the Attorney General.

Labour’s shadow Brexit secretary Keir Starmer said that “having reviewed the Attorney General’s legal advice, it’s obvious why this needed to be placed in the public domain”.

There was a bit of confusion as reporters and MPs waited for the report to be published: of a panel of experts on Sky News, one person had read the report but couldn’t speak about it until it was officially published, another hadn’t read it but knew what was in it.

What does it say about the backstop?

UK: Prime Minister Theresa May in Downing Street SIPA USA / PA Images Prime Minister Theresa May leaves Downing Street on December 4. SIPA USA / PA Images / PA Images

In short, the Attorney General’s legal advice confirms that the backstop, referred to in the legal advice as “the Protocol”, will “endure indefinitely” and will mean that there will be more customs checks between Northern Ireland and Great Britain than there are currently.

He says that these customs checks would take place at ports and airports between the North and Great Britain and would mean that “GB is essentially treated as a third country by NI for goods”.

Cox says that there are parts of the deal that contradict each other, which means that it’s not clear whether the backstop is temporary.

“It is difficult to conclude otherwise than that the Protocol is intended to subsist when negotiations have clearly broken down,” the advice states.

Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear invention of the parties that it could be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set therein. 

He adds that giving Northern Ireland access to free movement of goods under the backstop splits the EU’s four freedoms, something that EU chief negotiator Michel Barnier said was a redline issue for him.

He says that this could pose “a difficult precedent” for the EU, as other territories could ask for special deals; the AG adds that the “Irish in particular” could find this special treatment for Northern Ireland – where they would be allowed to remain in part in the EU – “problematic”.

The DUP, unionists and Brexiteers have expressed particular concern at the following paragraph, saying that it lays a path to Northern Ireland remaining in the EU:

“…it would be open to the EU, under the pressure of factors set out above, if it considered negotiations had clearly broken down or were taking an unsatisfactory long time, to argue that Article 50 TEU no longer provided a legal base for a UK wide customs union. They could, therefore, submit a formal notification to the Joint Committee arguing that the Protocol was no longer necessary in part and that the GB elements of the customs union should fall away, leaving only NI in the EU customs territory as the minimum necessary to achieve the objectives in Article 1.34.”

“No wonder they tried to hide the legal advice,” DUP deputy leader Nigel Dodds said.

Other concerns raised by the Attorney General include the fact that there’s no unilateral mechanism for the UK to leave the UK-wide customs deal provided for by the backstop.

Although there were no “security issues” contained in the advice – which the Prime Minister had cited as a reason why the AG’s advice shouldn’t be published – it has had a political impact.

The DUP, who are supporting the Tory government, said that the legal advice was “devastating”; reports had indicated that the Attorney General himself considered resigning over the issue.

For all the Prime Minister’s promises and pledges the legal advice is crystal clear. In her words, no British Prime Minister could ever accept such a situation.

SNP MP Stephen Gethins said that the provision “gives Northern Ireland full access for goods in the Customs Union”, which is a “concern for us because it puts Scotland at a competitive disadvantage”.

“I think what it tells us is that you do have a differential deal for Northern Ireland, but I’d want to see the same for Scotland,” the Remainer MP told Sky News

Prime Minister Theresa May defended criticisms of her deal based on the AG’s advice in the House of Commons:

“I have myself said on the floor of this House that there is no universal right to withdraw from the backstop,” she said, adding that she also said that there is no intention of either party that the backstop will be used – or if it is used, that it would be indefinite.

Home Secretary Sajid told the House of Commons, in response to Dodds, that some compromises are necessary as part of Brexit, and that the UK had a duty to uphold the Good Friday (Belfast) Agreement.

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