The UK Government has been forced to publish the legal advice given to Prime Minister Theresa May by the Attorney General on the proposed backstop plan, which aims to avoid a hard border in Ireland under all circumstances. The backstop appears in a ‘Protocol on Ireland/Northern Ireland’, which constitutes part of the UK's withdrawal agreement with the EU. It would only come into effect if a UK-EU trade agreement keeping the border open is not ready by the end of a post-Brexit transition period. Much of the advice given by the Attorney General is not new, however, for the first time the advice is set out in black and white in the six-page document. .
The advice serves to remind the UK that Northern Ireland would be more heavily entwined in the EU's customs rules and procedures than the rest of the UK. Northern Ireland would retain full membership of the EU customs union, while Great Britain (England, Wales, and Scotland) would be in a separate customs union with the EU. This complex arrangement would result in the whole of the United Kingdom being in a single customs territory with the EU. That means there would be no tariffs on goods passing between anywhere in the UK and the EU, but declarations would have to be made, but would not involve any kind of border checks, for goods passing from Great Britain to Northern Ireland. It is a not-so-carefully crafted form of words, with which none of the stakeholders are completely happy.
The document also clearly spells out the implications of Northern Ireland remaining in the EU's single market for goods while the rest of the UK does not. There are no surprises in this regard either, but the Attorney General places specific emphasis on the fact that, for regulatory purposes, Great Britain would be treated as a third (separate) country by Northern Ireland. This would mean that for goods crossing the Irish Sea to Northern Ireland, but not in the other direction, regulatory checks would have to take place.
The Attorney General gives a legal opinion about international law with respect to the permanency or otherwise of the backstop: everyone says the backstop is intended to be temporary, but it could - theoretically - remain in place indefinitely "unless or until" an alternative or superseding permanent agreement takes its place. This is only one of several ways in which many supporters of Brexit fear a trap, although it is quite clear that the EU is equally uncomfortable with many aspects of the backstop.
The Attorney General sets out at some length why the EU is not delighted with the backstop either. Awkward legal questions are raised about the UK, a country which will no longer be part of the EU, being responsible for protecting one of the borders of the EU single market. The Attorney General also suggests that this could provoke complaints from Irish companies: companies could argue that the EU is giving their competitors in Northern Ireland an unfair advantage over them, as their competitors would have full access to both the EU and UK markets. The backstop also complicates the EU's ability to enter into future trade deals around the world, because the EU may not be able to define the extent of its customs territory precisely. It is vital for both the UK and the EU, that the backstop not only be presented as "a temporary arrangement with a clear and early end", but for it to actually be one.
There is a suggestion that the language used in the protocol, might allow the EU to suggest that the UK-wide part of the backstop should be abandoned, while keeping Northern Ireland closely tied to the EU. But the lack of a unilateral exit clause is a double-edged sword. If the UK cannot bring the backstop to an end without the EU's approval, then the UK would have to agree to the EU ending it. This whole element has clearly been designed to concentrate minds on a permanent solution.
In the end this whole situation is a highly political construction. Resultantly, the prospect of the UK being unable to leave a temporary customs union without a following agreement on the Irish border makes many people in the UK extremely uncomfortable, particularly Northern Unionists. This gets to the root of the problem. The EU believes the only way for the Irish border to remain as open as it is now is for either Northern Ireland or the whole of the UK to stay in the customs union and the single market, and the EU’s position appears to be that it is still waiting for the UK to come up with a credible alternative plan to this.
UK Prime Minister, Theresa May, had a rough day in Parliament this week, suffering a series of defeats that tested her government and the strength of her Brexit deal. By week’s end, Parliament had voted to hold May’s government in contempt, and to give it self control over the future of Brexit.
It was a big victory for pro-European members of Parliament, who dislike May’s deal but want to avoid a “Hard Brexit” scenario where the UK and the EU divorce without any agreement or transition in place. It also couldn’t come at a worse time for May, who is trying to sell her Brexit deal to Parliament before a vote that’s scheduled for next Tuesday, December 11th. The Prime Minister is facing an uphill battle, since her agreement is deeply unpopular. The Brexiteers say it fails to deliver on a decisive split with the EU, while the pro-EU camp would prefer to remain part of the EU, but at the very least want stronger ties than the deal offers.
On Tuesday of this week, a contempt vote against the Government — which is basically Parliament telling the Government that it’s preventing the body from doing its job — had never happened before in British history. The contempt vote was an embarrassment to May. But another vote dealt an even bigger blow: Parliament voted to give itself the power to decide on a “plan B” if May’s Brexit deal is defeated next week, which it looks like it’s going to be. This will help change the course of Brexit, and defend against the possibility of a no-deal Brexit. It may also increase the possibility of a second referendum. Events are still unfolding, but a couple of things seem clear: Britain remains bitterly divided over Brexit, and the UK Parliament’s vote has transformed the stakes ahead of the vote on May’s deal next week.
This week, Nick Timothy wrote a brilliant opinion piece for The Telegraph entitled “This was the week that Brexit died.” Given everything we know; his prediction that May will likely lose her vote next week, and the UK could face a general election, if Labour push for a confidence vote, is looking more likely now than ever, and that a “plan b” is what will be needed to get a deal more will be happy with. The problem now is, no-one seems to have a better idea, despite being very vocal about their displeasure with the May deal.
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