Brexit – the Government’s legal advice


Author: Charles Proctor


Charles Proctor, Partner, Fladgate LLP (cproctor@fladgate.com)


 

In Tuesday’s post (‘Brexit – A Legal Quagmire’), we noted that the Government had been held to be in contempt of Parliament in consequence of its refusal to publish the Brexit legal advice furnished by the Attorney General.  As a result, the Department for Exiting the European Union published that advice at midday on Wednesday 5 December.

It may be of some interest to note that the Attorney General’s letter of advice to the Prime Minister runs to six pages.  It was therefore something of an achievement to have published a 43 page document (EU Exit: Legal Position on the Withdrawal Agreement) that purported to be a “summary” of the full advice.  As noted in Tuesday’s post, the summary document does not really include any form of legal advice or assessment of the draft Withdrawal Agreement – it simply provides a description of the key terms of the Agreement.

In contrast, the Attorney General’s advice is limited solely to the Protocol on Ireland/Northern Ireland.  There are some by observations in the advice that may perhaps explain why the Government wished to preserve the confidentiality of the advice.  For example:

  • paragraph 7 of the advice notes that “…Northern Ireland remains in the EU’s Customs Union…and the Commission and [the Court of Justice] will continue to have jurisdiction over its compliance with those rules…”. This observation, along with several others, makes it clear that a separate customs and regulatory regime will apply to Northern Ireland;
  • as we noted in Tuesday’s post, the Withdrawal Agreement contains some 170 pages dealing with the Northern Ireland “backstop” which are “…intended to apply only temporarily…until superseded by a subsequent agreement…”. We also noted that the Northern Ireland Protocol – although expressed to be temporary – will operate permanently until the UK and the EU agree a replacement arrangement.  Paragraphs 12-16 of the advice pick up on this theme and come to essentially the same view.  In particular, paragraph 16 states (in bold type) that “…despite statements in the Protocol that it 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…”.  As a result, the Protocol would remain in force even if the negotiations for a substitute agreement have clearly broken down.  The UK apparently attempted to negotiate a unilateral termination right under these circumstances, but this was rejected by the EU;
  • paragraph 23 refers to the “…lack of any effective means of termination…” of the Protocol, and the consequence that “…the UK may have to trust in seeking a satisfactory outcome from the negotiations that will ensue…”;
  • the inability of the UK unilaterally to depart from the Protocol is emphasised (again, in bold type) in paragraph 30 of the advice: “…the current drafting of the Protocol…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 the 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…”; and
  • the concluding paragraph of the advice reinforces these points noting that “…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…”.

It is often the function of lawyers to explain the potential downsides of any deal.  Yet the fact that its own chief legal adviser has written a downbeat assessment may not be especially helpful to the Government’s cause.

All of that said, we would note that the Attorney General’s advice does not appear to add anything of substance that is new to the debate.  The difficulties with the customs union arrangements and the Irish backstop had already been noted and explained by many commentators. Whilst the Government had resisted the publication of this advice and – as a result – the document had become controversial, it seems unlikely to have any lasting impact on the Brexit debate or the way forward.

For legal updates and news, please visit Fladgate’s Brexit briefings blog

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