An attendee holds a placard reading ‘The Best Brexit Deal’ behind Theresa May, U.K. prime minister and leader of the Conservative Party. (Photographer: Chris Ratcliffe/Bloomberg)

Why Theresa May Wanted to Keep the Brexit Legal Advice a Secret

(Bloomberg) -- Theresa May wanted to keep it secret — and her Brexit critics can now see why.

Attorney General Geoffrey Cox’s legal advice on the U.K. prime minister’s Brexit deal lays bare in the starkest terms the dangers her agreement poses to the constitutional integrity of the U.K.

Why Theresa May Wanted to Keep the Brexit Legal Advice a Secret

Cox’s legal letter shows how the backstop will split Northern Ireland away from the rest of the U.K. This is a dangerous finding for May because keeping the four nations that make up the U.K. together is a totemic issue for many Conservatives.

And the unity of the U.K. is of fundamental importance to the small party of 10 lawmakers propping up May’s Tory government: Northern Ireland’s Democratic Unionist Party. If the DUP pull the plug, May’s government ultimately collapses.

This is what the letter says:

  • The backstop means Northern Ireland “remains in the EU’s Customs Union” and will apply “the whole of” the EU’s customs laws, while the rest of the U.K. leaves and forms a separate customs union with the bloc
  • “Northern Ireland will remain in the EU’s Single Market for Goods” as well
  • The European Court of Justice and the European Commission will continue to hold sway in Northern Ireland, but not on the British mainland
  • These differences between Great Britain and Northern Ireland will mean goods crossing the Irish sea from east to west will need customs declarations and regulatory checks
  • For regulatory purposes, mainland Britain “is essentially treated as a third country” by Northern Ireland for incoming goods

The DUP reacted with immediate horror to the blunt assessment of new barriers between the mainland and Northern Ireland.

“This is totally unacceptable and economically mad,” DUP deputy leader Nigel Dodds said.

No Escape?

The news, from his point of view, only got worse.

Cox says the backstop will continue to apply “in whole or in part” until new U.K.-EU trade terms are agreed to. For Dodds, this carries the threat of further divergence between Britain and Northern Ireland in the future, with his region potentially remaining locked inside the EU’s restrictive customs union forever while the rest of the U.K. moves further away from the bloc’s rules over time.

The six-page document risks igniting a furious response from pro-Brexit Tories. That’s because -- in black and white -- it makes clear that the U.K. cannot escape from the so-called Irish border “backstop.”

And worse, it shows that May had a choice on whether to accept such a deal -- which even she says is not perfect -- and she took a “political decision” to agree to it.

The Irish backstop is the part of the Brexit agreement designed to ensure there is no need for checks on goods crossing the frontier between the Irish Republic and Northern Ireland, in the interest of maintaining peace in the region.

Endure Indefinitely

In his letter, Cox warns that the U.K. has no way “lawfully” of leaving the backstop arrangement and could be trapped inside it for “many years.”

In theory the backstop will come to an end when a new overarching trade deal between the U.K. and the EU takes effect and makes it unnecessary.

But Britain could find itself locked in “protracted and repeating rounds of negotiations” in the future, Cox explains. “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.”

The risk of being trapped in the backstop must be weighed against the “political and economic imperative on both sides” to agree to a new trade deal, he says. “This is a political decision for the government.”

©2018 Bloomberg L.P.