The loudest sound this morning is the silence from Geoffrey Cox, the Attorney-General. The test for Theresa May’s discussion with Brussels is whether it means the UK will be caught indefinitely in the backstop. And the person who decides this is Mr Cox. No10 misrepresented the nature of the backstop when it was signed: some (then) Cabinet members go further and say that they were lied to. Then No10’s own representation of the Withdrawal Agreement was contradicted by the Attorney-General. This is what led us to this point: No10 has, alas, proved that it cannot be trusted to interpret legal advice. Cox has proven that he can be trusted.
Cox is said to be ‘agonising’ this morning and I can see why. If May’s new agreements passed his test, he’d probably have said so at the time and the statement would be under his name, not hers. He knows that one word from him could see May’s vote pass. He’d love to give that word, to save her (and others) from the agony that would likely come with seeking an extension to EU membership. But he’s a barrister. It’s not just his honour that’s at stake, but his livelihood: no barrister who becomes famous for caving under pressure can keep his reputation. And Cox is a barrister who named his chambers after Thomas More: he is likely to agonise, but not bend. We have seen May’s new documents. What Cox will be agonising over now is whether this allows him to change the key sections of his advice, republished below.
The indefinite nature of the Protocol
12. Axiomatic to the agreement, pursuant to Article 2.1., is the duty of the parties to negotiate a superseding agreement. This must be done using best endeavours, pursuant to Article 184 of the Withdrawal Agreement. This is subject also to the duty of good faith, which is both implied by international law, and expressly created by Article 5 of the Withdrawal Agreement.
13. But what happens if both parties, pursuing their best endeavours in good faith, are simply unable to agree a superseding agreement within a reasonable time, or indeed at all? It might be argued that if, as Article 1.4. states, the Protocol is intended to apply “only temporarily”, and “taking account of the commitments of the Parties set out in Article 2.1.” (to use their best endeavours to negotiate a superseding agreement) they must intend that the Protocol is to subsist only as long as those negotiations are genuinely continuing. The Protocol appears to assume that the negotiations will result in an agreement.
14. However, on closer examination of the provisions of the Protocol, the position becomes less clear. The preamble on the one hand reinforces the temporary nature of the Protocol: it refers to the Withdrawal Agreement, which is based on Article 50 TEU, not aiming to establish a permanent future relationship between the UK and the EU, and the intention of the parties to replace the backstop solution on Northern Ireland with alternative, permanent arrangements for ensuring the absence of a hard border on the island of Ireland. But on the other hand, it also recalls the commitment of the UK to protect North-South cooperation and the UK’s guarantee of avoiding a hard border, including any physical infrastructure or related checks and controls, and bearing in mind that any future arrangements must be compatible with these overarching requirements.
15. Article 1.4. includes in the final sentence the statement that “the provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement” (emphasis added). Further, Article 1.3. is premised on the assumption that the arrangements that the Protocol puts in place in relation to NI are “necessary” to achieve its objectives.
16. It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, 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, in whole or in part, as set out therein. Further, the Withdrawal Agreement cannot provide a legal means of compelling the EU to conclude such an agreement.
The Article 19 review mechanism
24. The Protocol sets out a review mechanism at Article 19. This provision allows termination by mutual consent when, in the view of both Parties, the Protocol is “no longer necessary” to achieve the objectives set out in Article 1.3. In my view, this adds little, other than procedurally, to the international law position to which the Protocol is already subject, that the Parties could always terminate or amend the treaty by consent. I understand that we attempted to negotiate a unilateral termination mechanism exercisable on notice and on the grounds that there was no longer any reasonable prospect of agreement, but this was rejected by the EU.
25. Furthermore, perhaps beyond the advent of a yet unforeseen technical solution, it is difficult to think of a circumstance when the option to use the review mechanism might arise other than, as the Protocol already provides, on the conclusion of a subsequent agreement that supersedes, wholly or partly, the Protocol and to that extent renders it unnecessary to fulfil its stated objectives. The position would have been different under a clause allowing for mutual termination once it was clear that negotiations had irretrievably broken down. I understand that the EU was not prepared to agree to this, but such a clause would have provided United Kingdom with reasonable assurance that it could terminate the Protocol once it had become clear that there was no reasonable prospect of agreement and that the Protocol had now assumed the guise of a permanent arrangement.
26. Article 19 does not expressly state that the review mechanism is intended to be arbitrable under the governance provisions of the Withdrawal Agreement, but I consider that the better view is that it is.
Either party could invoke this review mechanism. Therefore, Article 19 provides also for the EU to argue that the Protocol is no longer necessary “in whole or in parr: it would be open to the EU, under the pressure of the factors set out above, if it considered negotiations had clearly broken down, or were taking an unsatisfactorily long time, to argue that Article 50 TEU no longer provided a legal base for a UK wide customs union. They could, therefore, submit a formal notification to the Joint Committee arguing that the Protocol was no longer necessary in part and that the GB elements of the customs union should fall away, leaving only NI in the EU customs territory as the minimum necessary to achieve the objectives in Article 1.3. That contention would meet the strong objection that it would contradict the very clear intention of the parties that the single customs territory created by Article 6.1. was not to be treated as severable.
27. In any event, whichever party attempted to submit a notification, it is extremely difficult to see how a five member arbitral panel made up of lawyers who were independent of the parties would be prepared to make a judgment as political as whether the Protocol is no longer necessary, in the absence of the consent of the parties, much less make a finding that it would be appropriate that only certain parts of the Protocol were no longer necessary.
28. Furthermore, the Withdrawal Agreement makes clear that the arbitral panel (preceded by consideration by the Joint Committee) is the only mechanism through which disputes can be adjudicated. In addition, only the remedies expressly provided for in the Withdrawal Agreement are applicable. This does not include termination of all or part of the Withdrawal Agreement. While the Withdrawal Agreement does contemplate one side suspending part of the Agreement as a remedy following arbitration, the aim of suspension is simply to force the other party back to the negotiating table to continue negotiations in good faith.
29. While the duties to act in good faith and in particular to use best endeavours in negotiating a new agreement are forceful and precise, they could not require the parties to a negotiation to set aside their fundamental interests, although they do require the parties to consider proposed modifications of the means by which they might be secured. For the EU, it can be assumed that avoiding a hard border on the island of Ireland and protecting the 1998 agreement in all its dimensions are fundamental interests and that the arrangements set out in the Protocol achieve those objectives. That does not rule out other means of securing them, and it is possible that if the EU peremptorily refused to entertain any alternative proposal for safeguarding them put forward by the UK, clearly demonstrating bad faith and a breach of the duty to use best endeavours, it could be challenged. But such conduct on the part of the EU would be highly unlikely; all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours, which would require clear and convincing evidence of improper motive and wilful intransigence.
30. In conclusion, the current drafting of the Protocol, including Article 19, 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 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. The resolution of such a stalemate would have to be political.
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