Brexit: Legal argument over scope of article 50 central to difficulties

Unclear if withdrawal agreement can include temporary all-UK customs union in backstop

EU chief Brexit negotiator Michel Barnier. Photograph: Emmanuel Dunand/AFP/Getty Images

EU chief Brexit negotiator Michel Barnier. Photograph: Emmanuel Dunand/AFP/Getty Images


An argument between lawyers about whether the EU treaty’s withdrawal article, article 50, limits the scope of what can be in the divorce treaty – the withdrawal agreement – appears to be crucial to the current difficulties in the Brexit talks.

A senior EU official in Brussels, responding to comments in the Commons on Tuesday by British prime minister Theresa May, confessed that member states remained in the dark about the precise nature of the breakdown issues, but said that “article 50 is not a basis for solving permanent issues relating to the relationship between the EU and UK”.

He expected the EU’s chief negotiator, Michel Barnier, to clarify these issues when he briefed ministers today.

At issue is whether the withdrawal agreement can encompass a temporary all-UK customs union arrangement in the backstop provision, as the UK hopes. The EU and Ireland are insisting that such a backstop provision cannot be time-limited, with the Irish Ambassador in London, Adrian O’Neill, pointing out that that would be as inconceivable as an insurance policy with a cut-off date.

The French are understood to be arguing that, because of the constraints in article 50, a customs union provision is not legally possible in a withdrawal agreement. Such a provision just for Northern Ireland may be possible.

However, the senior official briefing journalists insisted that, as he saw it personally, article 50 was “broad” enough to include any question relating to withdrawal, not least a temporary customs union arrangement.

Special summit

A European Commission spokesman would only say that “despite intense negotiations, several key issues remain unresolved” and that there would be no talks ahead of Wednesday’s summit.

However, there is an expectation here that talks will resume after the summit in which leaders will confirm a date for a special summit in November.

Mr Barnier will today come to Luxembourg to brief the European Parliament’s Brexit working group and European affairs ministers at the General Affairs Council. Afterwards he would normally brief journalists – but not this time.

On his way in to a meeting of foreign ministers in Luxembourg, Minister for Foreign Affairs Simon Coveney admitted to “frustration and disappointment” at the impasse but expressed confidence that a deal could still be done.

And he insisted that the Irish backstop commitment by the UK “cannot be time-limited”.

“That’s new and has not been there before” as a demand, he said. The backstop was supposed to remain “unless and until something better is agreed”.