Comment
After the humiliation of three Commons defeats in a row yesterday, including an unprecedented finding of contempt against her government, Theresa May has this morning released the government’s legal advice on her draft Brexit deal.
It contains two paragraphs which must surely seal her fate – and that of her proposed agreement – as far as her former allies in the DUP are concerned.
A ‘third country’
Cox’s advice makes clear that May’s treaty would result in the UK becoming a ‘third country’ as far as Northern Ireland was concerned – requiring compliance checks on items crossing the border:
This means regulatory checks would have to take place between NI and GB
A hard Irish Sea border
Cox also raises the possibility that the EU could decide that the Withdrawal Agreement no longer needed to apply to Britain, leaving Northern Ireland indefinitely in a separate status within a customs union with the Republic:
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
Cox argues that this notification would not be successful, but as he admitted in the Commons on Monday, no one can be certain – and in his advice he notes that the EU’s ‘fundamental interests’ would withstand any legal attempt to negate them and that these would certainly include as a priority the protection of the Good Friday Agreement and avoiding a hard border within the island of Ireland as a priority:
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… 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
These two paragraphs make it inconceivable that the DUP would support the deal – or, as the DUP’s statements have already made clear, any government that would try to pass it.
Geoffrey Cox’s full advice regarding Northern Ireland can be downloaded here.
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