As talks between the EU Brexit task force and the UK resumed last week – notably involving visits to Brussels by British attorney general Geoffrey Cox to meet negotiators – a veil of silence again descended on the substance of those discussions.
We’ve re-entered “the tunnel”, in the words of Sabine Weyand, the deputy head of the task force.
Cox is crucial. His highly influential legal opinion to the Commons in December argued that the UK could become trapped in the backstop for good. "In the absence of a right of termination," he wrote, "there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations ...
“In international law, the protocol would endure indefinitely until a superseding arrangement took its place.”
The backstop is the legal guarantee in the protocol to the withdrawal agreement that, should the EU and UK be unable to agree in time a future trading relationship that safeguards the frictionless border in Ireland, the UK will sustain agreed measures to protect it.
The temporary nature of the backstop would allow the UK to argue it would be entitled to repudiate the protocol if it became clear that the backstop was, in fact, permanent
The focus of the current talks is reportedly a search for a means by which the attorney general could revise his damning opinion and sway key votes on March 12th in support of the withdrawal agreement – crucially without amending the agreement, which the EU insists cannot be reopened.
Yet there are provisions in the agreement – specifically a clause on arbitration of disputes – that do directly address those Cox concerns and that, it could be argued, refute persuasively the case made repeatedly by opponents of UK prime minister Theresa May that the EU could indefinitely delay the UK's departure.
Unilateral exit
Sources in Brussels say that the arbitration provisions are indeed a major focus of Cox’s diplomacy in the search for a “legally binding” assurance. A letter from the EU to London highlighting its provisions, it is argued, may help to do the trick.
Sources also suggest that the attorney general is contemplating telling the House of Commons that the explicitly “temporary” nature of the backstop in the agreement would allow the UK to argue that in international law it would be entitled to repudiate the protocol unilaterally if it became clear that the backstop was in fact becoming a permanent fixture.
It is not an interpretation of international law that the EU would share and so there can be no question of the union acknowledging such a right, but Brexiteers would certainly cheer Cox’s affirmation of it to the rafters.
The UK might be willing to sign up now, and get us through the immediate logjam, the problems with the backstop do not go away. A new way of kicking the can down the road
While the arbitration provisions do not provide either a specific time limit to the backstop or a mechanism for unilateral withdrawal – the sorts of guarantees being sought by the DUP and other critics of May – they do ensure that a decision to suspend the backstop is not ultimately at the sole discretion of the EU and would be timely.
Under the agreement a joint committee, co-chaired by the UK and EU, is charged with the "implementation, application and interpretation" of the agreement once in force after the transition period. The protocol to the agreement (article 20) must be reviewed by the Joint Committee at either party's request within six months, if either considers that it "is no longer necessary to achieve the objectives set out in article 1(3) and should cease to apply in whole or in part".
Should the joint committee be deadlocked on the proposal to suspend the backstop, the matter can be referred to an arbitration panel of five chaired by an independent figure nominated and agreed by both sides.
The panel would comprise individuals who are not officials or “other servants” of either the UK or EU governments or institutions, “whose independence is beyond doubt, who possesses the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognised competence, and who possess specialised knowledge of [EU] law and public international law”.
A further difficulty
If Cox is indeed prepared to revise his negative opinion on the basis of a review and an EU public re-endorsement of the arbitration proposals, he may face some continuing difficulties with a key aspect of the protocol review clause. It clearly requires that any review of the backstop can only be contemplated if it “is no longer necessary to achieve its objectives” – the safeguarding of a frictionless border.
That is a test the independent arbitrator cannot ignore, and one that points to permanent UK commitments, which it is unwilling to make at present.
Although the UK might be willing to sign up now to the withdrawal agreement on the basis of such an interpretation, and get us through the immediate logjam, the central problems with the backstop’s potential permanence do not go away. A new way of kicking the can down the road.