We welcome the publication of the full legal advice following the vote in Parliament forcing the Government to fulfil the terms of the previous vote in Parliament.
It is clear from the Attorney General’s advice on the legal effect of the Protocol on Northern Ireland to the Prime Minister and her cabinet colleagues that we were right to advocate its full publication and we have been vindicated in our opposition to the backstop arrangements contained within the withdrawal agreement.
In stark terms, the Attorney General Geoffrey Cox QC MP makes clear:
• 1 The backstop will come into force on the conclusion of the transition period while negotiations are continuing for an agreement that supersedes it and “unless and until” that “subsequent agreement” is applicable.
• 2 While the UK as a whole will form a single customs territory the arrangements as a whole apply differently in GB and Northern Ireland.
• 3 Northern Ireland remains in the EU’s customs union and will apply the whole of the EU’s customs acquis and the Commission and the European Court of Justice will continue to have jurisdiction over its compliance with those rules. Therefore, goods passing from GB to NI will be subject to a declaration process.
• 4 Northern Ireland will remain in the Single Market for Goods and the EU’s customs regime and will be required to apply and comply with the relevant rules and standards. Herein opens up regulatory divergence in the future.
• 5 The implication, as outlined by the Attorney General, of NI remaining in the EU Single Market for Goods while GB does not is that for regulatory purposes GB is “essentially treated as a third country by NI for goods passing from GB into NI”. This is totally unacceptable and economically mad in that it will be erecting internal economic and trade barriers within the UK.
• 6 The backstop will continue indefinitely and cannot be exited by the UK. Mr Cox says “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.” The truth is now laid bare for all to see in that the backstop will not be temporary in nature.
• 7 In paragraph 26 it appears possible that the EU could apply that the protocol is no longer necessary “in whole or in part” and consequently it is possible that the GB elements of the customs union could fall away leaving only Northern Ireland in the EU customs territory as the minimum necessary.
• 8 The legal advice makes clear that the current drafting of the backstop does not provide for a mechanism that is likely to enable the UK lawfully to exit.
This advice concisely sets out the stark reality of the operation of the backstop.
Its publication demonstrates how the Prime Minister has failed to abide by the commitments she gave in that the United Kingdom as a whole would leave the EU and that she would ensure there would be no customs or regulatory divergence within the UK.
This backstop is totally unacceptable to Unionists throughout the UK and it must be defeated and arrangements renegotiated that uphold the commitments which the Prime Minister and her government has in the House of Commons.
Nigel Dodds MP is DUP deputy leader