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The Legal Risks of the Brexit Backstop

Yesterday I explained the Brexit dilemma regarding the backstop. Today parliament will vote on Theresa May’s deal. Before they do, Britain’s attorney general Geoffrey Cox has addressed parliament with legal advice.

Cox, who has a reputation for honesty, has admitted that the backstop issue has not been resolved. There is no “internationally lawful means” whereby Britain could get out of the Irish backstop without EU permission, Cox has said. However, he remains optimistic and suggests that the new deal would also bring “substantive and binding reinforcement of the legal rights available to the United Kingdom.”

Nevertheless, Cox admitted that the U.K. is still at risk of being “indefinitely and involuntarily detained” by the EU. The question is: Will this be enough to satisfy members of parliament?

Taking questions from MPs in advance of the “meaningful vote” today, Cox said:

  • “Let me make it clear: The United Kingdom is the United Kingdom, it includes Northern Ireland.” Here Cox is reinforcing the prime minister’s commitment to Northern Ireland and reinstating that leaving the EU without Northern Ireland is not a route the Conservative government will ever entertain.
  • “It’s perfectly possible to approach this in stages,” Cox said. He added that the backstop is a point of “leverage” and that further negotiations would not only be possible but in the EU’s interests.
  • “You cannot go on refusing something that requires a reasonable adjustment,” Cox reinstated that failing to solve the backstop problem would hurt everyone — not least the EU.
  • “I’ve found those with whom we are doing business at the European Union are perfectly reasonable and rational human beings . . .  It is in the interest of the (European) Union itself to reach an agreement.”
  • “The enemy of this country is a dangerous oversimplification of the complexity of the problems we face . . .  this withdrawal agreement does not oversimplify them . . .  [this] is the deal that we need in order to reach the first stage of this negotiation.”

Cox is admitting that the “backstop” is still a problem in the current deal. But he thinks the solution is to trust the European Union to act in good faith by supporting Theresa May’s deal. Has he persuaded MPs?

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