The Attorney General, Geoffrey Cox, has been tasked with coming up with a legal solution to the 'backstop' that the Government hope will persuade or bamboozle the DUP and Conservative backbench MPs into backing the Prime Minister's EU deal largely as it is.
We do not know what he will come up with, but there is a range of options from a legally impotent 'codicil' to a full replacement of the backstop with alternative arrangements as mandated by the Commons' vote on Sir Graham Brady's amendment.
If the Attorney General concludes a legal agreement the Government may bring back a new 'meaningful vote' to approve the deal next Wednesday. To understand the importance of this we need to go through his options. But before starting, lets recap as to what the 'backstop' is and why it is a problem.
The problem with the backstop
The 'backstop' is the 'Protocol on Ireland/Northern Ireland' attached to the Withdrawal Agreement. The Withdrawal Agreement, if approved, would become an international treaty and the Protocol would have the same legal force as the main text.
The backstop would commit the UK to placing Northern Ireland in a Customs Union with the EU. Among other things, it commits the UK to keeping EU regulations in Northern Ireland, to EU policing of 'state aid' to prevent the UK Government using public money to Northern Ireland's advantage and to following the EU VAT regime in the province.
These provisions are controversial on many levels. Firstly, imposing EU law on Northern Ireland over which they have no say is undemocratic. Secondly, as these provisions do not apply to the rest of the UK, it opens up the probability of an internal UK border. Goods going from mainland Great Britain to Northern Ireland will cross a regulatory and customs border.
GB goods would require an archaic 'A.UK movement certificate', a paper form requiring a physical wet stamp (Article 4 of Annex 3 to the Protocol) which would in all probability not work. Creating an internal border with Northern Ireland on the other side has obvious economic (60% of NI's exports/imports are with GB) and political problems for Unionists and is potentially in contravention of the principle of consent agreed in the Belfast Agreement.
No exit clause
So far so dreadful. The Protocol would divide the UK, lock Northern Ireland in a Customs Union following EU law under the European Court of Justice and subject UK trade with the EU to an archaic paper based system that is already obsolete.
If that is not bad enough, the real killer problem is that there is no way out. If the UK ended up in the backstop there is no exit unless the EU wished to let us leave.
The only route out of the backstop is contained in Article 20 of the backstop – the 'review clause'. This states that if the UK notifies the Joint EU/UK committee of a desire to leave the "union and the United Kingdom decide jointly" on the outcome – i.e. the EU can say no.
To make matters worse, the EU could only decide to let the UK out if the conditions in Article 1 (3) of the backstop are fulfilled: These are "the necessary conditions for continued North-South cooperation, avoid a hard border and protect the 1998 Agreement in all its dimensions." These are all disputed and vague terms that are designed never to be met.
If the review clause is designed to keep the UK cemented in the backstop, it fulfils another vital task. It prevents the UK using the Vienna Convention on the Law of Treaties to denounce the backstop and escape. If there were no review clause, the UK could use Article 56 of the convention to give notice and walk away. The presence of the clause closes off that option.
Why did the Prime Minister agree the backstop?
It is clear to me that no MP could in any good conscious agree a treaty that divides the UK permanently with no exit. So why did the Prime Minister and her advisers agree to it?
To the Downing Street Europe Unit, that dreamt up this horror, it is actually rather clever and fulfils many of their main objectives.
The central objective and current planning assumption in Downing Street remains the adoption of the Chequers Customs Partnership. This Chequers plan is based on technology and practices that do not exist that would create a virtual Customs Union between the UK and EU with associated regulatory alignment. This involves a complex system for tracking goods around the UK to ensure they do not enter the EU.
This plan is currently unworkable and will probably never be workable. It is also highly undesirable as it would lock the UK into EU rule-taking and prevent the UK having its own trade policy. But that is of little concern in Downing Street.
For Downing Street whether Chequers works or not is of little concern: the immediate aim is to remain in a Customs Union with EU rule-taking. The backstop was vital to get them there. With the backstop, Downing Street has a method of permanently cementing the UK into a Customs Union for Northern Ireland which they could then build on during the implementation period to get to Chequers/CU for the entire UK.
For them, the permanence of the backstop is its primary quality and purpose. The UK at the end of the implementation period must stay in an all-UK Customs Union so the future framework will by necessity be a Customs Union.
Very clever, notwithstanding the fact that a Customs Union was ruled out in the Conservative Manifesto, would leave the EU in charge of our trade policy and our legislation without any UK say.
No doubt it may even have crossed some of their minds that this would be a good platform to re-join the EU in a few years – in order to give us back our say etc. We now know this was all cooked up behind the backs of the FCO and DExEU.
So what might the Attorney General have asked for?
If the Attorney General believes he has been tasked with finding an exit to the backstop, he has an immediate problem. If he replaces or gains an exit from the backstop, he will unravel the entire strategy Downing Street has been working on for the last two years. If he does not, MPs are unlikely to be impressed and vote down the deal again. So here are his options:
1. Treaty Change
The text of the draft treaty could be opened up and replaced with something in line with the Conservative manifesto. Depending on what is changed, changing the treaty text is the only 100% legally fail-proof way of altering the meaning of the agreement. Options might include:
Verdict: Potentially Potent
2. A new Protocol
If the parties were keen to preserve their backstop unamended, they could agree a new Protocol. Protocols in EU treaties have the same legal force as the main text and derive their legal potency from it.
Unfortunately, the existing text of the backstop is so clear in its objectives that there would seem to be little a new Protocol could say that would not cut straight across it – i.e. create an exit – or be irrelevant. If they do conflict and one declares it is superior, will the European Court of Justice find in the UK's favour?
One weak idea might be to add a Protocol that puts a greater obligation on the EU to deliver a trade agreement that would replace the backstop. This is hardly an ideal solution. A legal commitment to deliver Chequers would arguably make the deal worse and effectively just replace one backstop with another backstop.
Verdict: Unlikely to be Potent
3. An 'interpretive instrument'
Under international law, parties to a treaty that is imprecise can agree an additional 'interpretive instrument' that would set out in more detail how they intend it to operate. These are accepted under Article 31 of the Vienna Convention.
The important point to note here is that the draft Withdrawal Agreement is actually very clear. It has a commencement clause (Article 185) and a review mechanism (Article 20 of the backstop) that gives the EU a veto. It would be impossible to interpret these clauses away.
If an interpretive instrument could not interpret an exit where one does not exist, it could potentially strengthen the "best endeavours" clause in Article 184 on achieving a new trade deal (based on the Political Declaration) to replace the backstop.
This, however, would only make matters worse. As long as the backstop is there, any future trade agreement will be a Customs Union. Creating a further UK commitment to deliver a deal based on the Political Declaration and the parameters of the backstop would further tie the hands of any future Prime Minister seeking to negotiate a genuine trade agreement.
Verdict: Minimal legal value as it cannot overrule the treaty
4. Amend the Political Declaration
The Withdrawal Agreement comes with a Political Declaration that is of itself not legally binding. The EU itself has said that it would be open to changing the Political Declaration – a tell-tale sign that this is a reasonably futile gesture. [The current one referenced in Article 184 is dated DD/MM/2018]
The Political Declaration sets out the broad parameters of a future trade agreement. While the wording is vague, it is clear that the current Withdrawal Agreement + the Political Declaration means a Customs Union. Indeed it is not well disguised. Paragraph 23 of the declaration refers to "single customs territory."
So could the Political Declaration be amended to help allay concerns over the backstop? There are multiple problems. Firstly, the Political Declaration is not legally binding; it cannot touch the text of the backstop (and nor would we want it to be legally binding, given that it takes us to somewhere we don't want to go). What it could do is redouble a joint commitment to move on with trade talks to come up with a replacement.
The problem with any potential replacement to the backstop is that the backstop itself sets a test that can only be met by agreeing a Customs Union. Article 1 (3) of the backstop as interpreted by the EU and Irish Government (with UK connivance) leads you to an all-UK Customs Union or a separation of Northern Ireland from the UK.
The Attorney General could insert lots of fine wording on sensible minimal border procedures, based on the Malthouse Compromise, into the Political Declaration. We could agree to move forwards on them at speed, using 'best endeavours' (Article 184) so they can be implemented at the end of the implementation period with no need for the backstop.
We could put all of this in the non-binding declaration, but it would come straight up against the actual text of the backstop. The UK could still not leave unless the EU agrees and the Irish have made it perfectly clear that they would not accept any change at all. It would lead us back to a Customs Union.
Verdict: Almost worthless and could potentially make matters worse
5. A Council Conclusion including basic 'assurances' or comfort wording
In addition to amendment of the existing Withdrawal Agreement or text, the EU might seek to make the Attorney General accept some lesser form of life. Perhaps a standard Council Conclusion including basic 'assurances' or some other comfort wording.
The point to note here is that political agreements are not binding in EU law or international law. There is little these could add if the existing wording remains as is.
Verdict: Of no value whatsoever
6. No change, but the Attorney General changes his legal advice anyway
The Attorney General is supposed to be an independent legal adviser to the Government. This principle is long standing. The appearance of partiality by A-G Hastings led to the 1924 Campbell case and the fall of a Labour Government. More recently we have had the appearance of politically influenced advice in the run-up to the Iraq war.
In this case, the Attorney General has already put his thoughts down in public in the House of Commons and privately in a memo to the Prime Minister that was subsequently released.
In this private advice, the Attorney General was emphatic that there was no escape from the backstop. It would not be credible if he decided to change this advice while leaving the Withdrawal Agreement untouched. A lawyer who negotiates a new agreement and then gives his opinion on the outcome of the negotiation is no longer impartial. He has himself for a client…
Verdict: Worse than useless
A prediction
We do not know what the Attorney General will come back with – but I will have a guess.
The key priority from Downing Street is for a minimal change that looks as if they have solved the backstop permanence problem while leaving them open to use it to build a permanent Customs Union.
On past performance, the EU is open to interpretive instruments as a way of avoiding tricky problems with treaties. An "interpretive instrument" was given to Belgium to help overcome Wallonian objections to CETA. The Dutch Government gained an interpretive instrument in a Council Conclusions annex, having voted down the EU-Ukraine agreement in a referendum. None of these made any difference.
So potentially they could agree an interpretive instrument that seeks to reinterpret the review clause and add in more commitments to future trade talks. In addition to that, Cox may seek to change the Political Declaration to add new options for the Northern Irish Border based on the Malthouse Compromise.
They could even grant a modicum of treaty change – the date on the political declaration in Article 184…. Perhaps some new wording in Article 1 of the backstop setting a more manageable test.
This will then get packaged up and given a grand and meaningless name – a codicil. To add more theatre, the Attorney General will then try the same trick David Cameron tried and 'lodge it at the UN'. This has no legal importance, and does not, as with David Cameron's renegotiation, make a document a 'treaty' (see David Lidington here). So there we would have it, a legally worthless document announced with fanfare – game set and match…
Not so fast
Let's stand back a moment. The Withdrawal Agreement was defeated by 230 votes, the largest in history for a government. It was defeated for good reason. It will cost £39bn, potentially split up the UK, prevent us having a trade policy, make the UK a rule-taker for years to come and puts the ECJ in charge of rules applied to the UK, penalties and even the calculation of the £39bn.
Of this deal, the backstop is undoubtedly the worst and most permanent feature – but not the only one. Taking this into account, the Commons voted to support Sir Graham Brady's amendment that "requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border".
These should be the tests we set when looking at the Attorney General's package:
This article was originally published by BrexitCentral.
