UK could be stuck in Brexit purgatory for years - here's why

UK could be stuck in Brexit purgatory for years - here's why

   December 06, 2018  
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UK could be stuck in Brexit purgatory for years - here's why

LEGAL advice provided to the Cabinet on Theresa May's Brexit deal has warned it could result in the UK becoming stuck for many years in "protracted and repeating rounds of negotiations" with no lawful power to exit.

And it made clear that Brussels could apply to an arbitration panel for Northern Ireland to remain in the EU customs area while the rest of the UK left.

The six-page document by Attorney General Geoffrey Cox was released to MPs a day after the House of Commons found the Government in contempt of Parliament for trying to keep it secret.

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The letter, dated November 13, emerged just minutes before Theresa May faced MPs in a weekly session of Prime Minister's Questions ahead of the second day of a five-day Commons debate on her deal.

Backstop arrangement

Democratic Unionist Party leader Nigel Dodds described it as "devastating" and said it made clear that the proposed backstop arrangement for the Irish border was "unacceptable" and must be defeated.

The Scottish National Party's leader in Westminster, Ian Blackford, called on Mrs May to take responsibility for "concealing the facts on her Brexit deal" from MPs and the public.

But Mrs May rejected the claim, insisting the document contained the same information as a shortened statement made to MPs by Mr Cox earlier this week.

Shadow Brexit secretary Sir Keir Starmer said that the 33-paragraph document revealed "the central weaknesses in the Government's deal".

It is likely to be seized upon by Tory critics of Mrs May's deal, who argue that the backstop arrangement to keep the Irish border open will deny the UK the power to withdraw from a customs union without agreement from Brussels.

Mr Cox found that the protocol setting out the terms of the backstop "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," he added.

Under the arrangements, "for regulatory purposes, GB is essentially treated as a third country by NI for goods passing from GB into NI", he said.

And he said that - despite assurances from both London and Brussels that it is intended to be temporary - the protocol would "endure indefinitely" under international law until another agreement takes its place.

Economic imperative

The UK would have no legal means of compelling the EU to conclude any such agreement.

The Attorney General warned: "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."

Mr Cox's advice stated that, if Brussels felt that negotiations on a trade deal had broken down or were taking too long, it would be able to apply to the arbitration panel for Britain to be removed from the customs union while Northern Ireland remains - effectively creating the border in the Irish Sea, which Mrs May has said no prime minister could accept.

But the Attorney General said it was "extremely difficult to see" the five-member panel being prepared to make such a political decision unless both sides agreed on it.

He also noted that the backstop arrangement would be "enormously complex" for the EU, requiring "considerable resources", meaning Brussels would come under pressure - especially from Dublin - to bring it to an end.

"Given the lack of any effective means of termination, it is to these very real - albeit unquantifiable - factors, among others, that the UK may have to trust in seeking a satisfactory outcome," he said.

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