Tuesday 23 April 2019

Peter Foster: 'All it took was one devastating line to bring house of cards tumbling down'

Man of the moment: Britain’s attorney general Geoffrey Cox enters No 10 Downing Street in London yesterday. Photo: REUTERS/Toby Melville
Man of the moment: Britain’s attorney general Geoffrey Cox enters No 10 Downing Street in London yesterday. Photo: REUTERS/Toby Melville

Peter Foster

In the end, a single devastating paragraph in the legal advice from Geoffrey Cox, the UK's attorney general, appears to have doomed Theresa May's Brexit deal.

It came after 18 paragraphs of preamble that offered crumbs of comfort for Downing Street as it tried to sell the merits of the letters, unilateral declaration and joint statements published after Mrs May's late-night dash to Strasbourg. Those documents were designed to convince as many Brexiteers as possible that the UK could not be trapped "indefinitely" in an Irish backstop arrangement once the future relationship and trade negotiations get under way.

Mr Cox began his advice with some lines of encouragement, arguing Mrs May had won "materially new" legal obligations from the EU on its commitments to try to end any backstop expeditiously.

Please log in or register with Independent.ie for free access to this article.

Log In

But in his 19th and final paragraph he delivered his killer blow. If both sides were deadlocked "simply because of intractable differences" then the UK would still have "no internationally lawful means of exiting the [Irish backstop] protocol's arrangements, save by agreement". In short, nothing has changed. The basic reality remains that the backstop cannot fall away unless it is "jointly" agreed by both the EU and UK that the mutual commitment to avoid a hard Border has been met.

The hard underlying reality that qualifies all of Mr Cox's other findings is that the Withdrawal Agreement promises no hard Border, no additional infrastructure and no "related checks and controls".

If this is what the agreement says, then how could the EU - if it refused to accept "technical solutions" which Brexiteers believe can deliver that Border - be seriously accused of acting in "bad faith". It could merely argue it was sticking to the mutually agreed objectives of the agreement, and perhaps even suggest that it was a future Brexiteer prime minister who was acting in "bad faith" if he or she refused to accept that such technical fixes did not work.

So, while Mr Cox says that the documents provided a "substantive and binding reinforcement" of the UK's right to take the issue to arbitration, this would only be in the event that "the EU were to fail in its duties of good faith".

This, as Mr Cox, acknowledges is a very difficult test to meet. He considers that the joint instrument and the unilateral declaration "reduce the risk" that the UK could be trapped indefinitely in the backstop, but quickly adds in a highlighted caveat "at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU".

In short, unless Britain could "demonstrate the EU was acting with the objective of applying the protocol indefinitely" there is little or no chance of making these new assurances stick. As Mr Cox recalls from his own advice on November 13, 2018, it is "highly unlikely" that the UK could take advantage of any such arbitration mechanism because of the difficulties of proof and the "egregious nature of the conduct" needed to show a breach of faith by the EU.

In short, none of what Mrs May has won could ultimately deliver the fixed time-limit or unilateral exit mechanism that Brexiteers want - and fear they would need if the UK is not to be sucked into a customs union and close regulatory orbit with the EU.

Put another way, the EU and the UK government ultimately have fundamentally opposing views from the Brexiteers on whether it is possible to leave the customs union and single market while also delivering an invisible Border in Ireland.

Once Mrs May allowed the Brady amendment to be defined as needing a unilateral exit mechanism or a hard time-limit, and the EU refused to reopen the Withdrawal Agreement, Mr Cox's Brussels trip became a fool's errand. His legal advice only reflects that bald reality.

Irish Independent

Today's news headlines, directly to your inbox every morning.

Don't Miss