Brexit legal advice warns of UK trapped in talks by Irish backstop

DUP’s Nigel Dodds describes as ‘devastating’ advice drawn up by UK attorney general

The UK could become bogged down in "protracted and repeated rounds of negotiations" if it tries to exit a "backstop" customs union with the EU, according to the legal advice given to British prime minister Theresa May on her planned Brexit treaty.

The full text of the advice, drawn up by attorney general Geoffrey Cox, was published on Wednesday, a day after MPs voted to find the government in contempt of parliament for ignoring their request for release of the document.

In the six-page document, Mr Cox stated that the so-called "backstop" to avoid a hard border on the island of Ireland would "endure indefinitely" until it was superseded by a long-term EU-UK agreement on trade. Warning of "stalemate", he added that without such a trade deal the UK would not be able to "lawfully exit" the arrangement.

The backstop would keep the entire UK in a customs union with the EU and Northern Ireland within parts of the bloc's single market unless and until an alternative solution was put in place to avoid a hard border.


Brexiteers strongly oppose the backstop, since they believe it would lock the UK into complying with EU rules and trading arrangements.

Mr Cox argued that the risk of being permanently trapped in the backstop “must be weighed against the political and economic imperative of both sides to reach an agreement that constitutes a politically stable and permanent basis for their future relationship”.

But his legal advice acknowledged that the backstop would carry on “even when negotiations have clearly broken down” on a future trading relationship.

He said: “Despite statements in the [withdrawal agreement] protocol that it [the backstop]\ is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the protocol would endure indefinitely until a superseding agreement took its place.”


The note also warned that "in the absence of a right of termination [on the backstop], there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations".

Nigel Dodds, deputy leader of Northern Ireland's Democratic Unionist party, which keeps Mrs May's minority government in power, said Mr Cox's paper was "devastating". Mr Dodds added on Twitter: "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."

The DUP is propping up Mrs May’s minority government, but it has pledged to vote against her Brexit deal in a crunch House of Commons vote on December 11th because the backstop would treat Northern Ireland differently from the rest of the UK.

Mr Cox was careful to note that the backstop was “by no means a comfortable resting place in law for the EU”.

He argued that Northern Ireland’s access to the EU’s single market for goods and the customs union “without the corresponding obligations of membership” was a breach of the indivisibility of the single market’s founding principles. He also suggested that it was unclear whether the UK’s exit treaty “provides an adequate legal basis for enduring and wide-ranging” future arrangements such as the backstop.

Keir Starmer, the shadow Brexit secretary, said on Twitter: "Having reviewed the attorney general's legal advice, it's obvious why this needed to be placed in the public domain.

“All week we have heard from government ministers that releasing this information could harm the national interest. Nothing of the sort. All this advice reveals is the central weaknesses in the government’s deal.”

But Andrea Leadsom, the leader of the Commons, insisted on Wednesday that the government had been right to defend the principle that legal advice from the attorney general should remain confidential. – Copyright The Financial Times Limited 2018