Geoffrey Cox

“The backstop risk is unchanged”: Geoffrey Cox’s full legal advice

Geoffrey Cox, the Attorney General, has published his verdict on the EU’s concessions. He reminds us that in his last judgement, the backstop “could not be brought to an end in the absence of a subsequent [UK-EU] agreement. This would remain the case even if parties were still negotiating many years later, and even if the parties believed that talks have clearly broken down.” There is now a reduced risk of this, he says. But his final sentence makes clear that the risk remains and if talks do break down, “However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

Here’s the full verdict:-

Legal Opinion on Joint Instrument and Unilateral Declaration concerning the Withdrawal Agreement

1.  I have considered the documents entitled “Instrument Relating To The Agreement On The Withdrawal Of The United Kingdom Of Great Britain And Northern Ireland From The European Union And The European Atomic Energy Community” (the “Joint Instrument”) and the Declaration By Her Majesty’s Government Of The United Kingdom Of Great Britain And Northern Ireland Concerning The Northern Ireland Protocol (the “Unilateral Declaration”), which were concluded with the EU late last night.

2. As the preamble states, the Joint Instrument is an instrument relating to the Withdrawal Agreement which was made in connection with its conclusion and is accepted by both parties. Therefore, pursuant to the principle set out in Article 31 of the Vienna Convention on the Law of Treaties, which is widely accepted as reflecting customary international law, the Joint Instrument has binding legal effect as a document that is to be taken as an authentic interpretation of the Withdrawal Agreement.

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