So was there something worth hiding that’s now been exposed under duress? In my opinion, it’s not so much a smoking gun, more a blast of painful shotgun pellets. DUP deputy leader Nigel Dodds was bound to describe as “devastating” the Attorney General’s full legal advice on the withdrawal agreement that the government fought so hard to withhold yesterday – and lost. In a statement this afternoon Mr Dodds rises to new heights with the description of the backstop as “totally unacceptable and economically mad.” Just as well it’s “ temporary” then. But how temporary is temporary? Unfortunately and paradoxically, a very long time indeed – potentially. The Brexiteers weren’t impressed by assurances that the EU are as keen as the UK is keep it as temporary as possible. The backstop you see is, ” legal”, whereas the assurances are inevitably only ” political.”
The Attorney’s formal advice states:
Despite statements in the protocol [the backstop] 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.
The backstop would carry on “even when negotiations have clearly broken down.”
There is a risk that the UK could become involved in “protracted and repeating rounds of negotiations” if it tries to leave the backstop.
In the absence of a right of termination, there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations.
Anticipating today’s hostile reaction Theresa May held out hope of concessions on Day 2 of the meaningful vote debate last night.
So the backstop is not a trick to trap us in the EU. It actually gives us some important benefits of access to the EU’s market without many of the obligations. And this is not something the EU will want to let happen – let alone persist for a long time.
But Mr Speaker, despite all of this, I know there are members of this House who remain concerned. I have listened to those concerns. I want us to consider how we could go further. And I will be continuing to meet colleagues to find an acceptable solution.
No 10 are floating the idea of a ‘parliamentary lock’ on the backstop, suggesting it cannot be entered into without the consent of MPs, but without reopening the withdrawal agreement. How would that work? It seems an oxymoron. If the lock was closed, the withdrawal agreement would fall unless another solution would be magicked up before the end of January.
Although the DUP will undoubtedly vote against the agreement, will they join Labour in moving a vote of no confidence in the government at that point and bring the government down? Nigel remains cautious. “ We’re taking one day at a time”. He’s surely wise to remain noncommittal. The DUP would have strength in numbers voting against Mrs May’s deal, but they’d be isolated from the vast majority of Conservatives, who however divided over Brexit, who would unite to try to keep the government in office. With the DUP siding with Labour the SNP and the Lib Dems, they would revert to being the lonely party in such unlikely company
In fact the Attorney’s formal legal opinion says nothing of substance that differs from the published legal commentary and two hours of questioning, but the language is starker – reinforcing the impression that the government had something to hide. But it does give the DUP and other critics with juicy quotes which Nigel squeezes to the full.
From the DUP statement.
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.
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.
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 United Kingdom.
The legal advice shows the backstop “will not be temporary in nature..and confirms that Northern Ireland could get stuck in the backstop while Great Britain leaves.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London