Reality Check: Legal advice on the Brexit deal

Theresa May leaving Downing Street Image copyright Reuters

The government has been forced to publish the legal advice given to Prime Minister Theresa May by the Attorney General on the proposed backstop plan, to avoid a hard border in Ireland under all circumstances.

The backstop, or guarantee, appears in a “Protocol on Ireland/Northern Ireland”, which forms part of the UK’s Withdrawal Agreement with the EU.

It would only come into effect if a UK-EU trade agreement keeping the border open is not ready by the end of a post-Brexit transition period.

Much of the advice given by the Attorney General is not new, but it is set out in black and white for the first time.

Here are some excerpts from the six-page document.

This is a reminder that Northern Ireland would be more deeply entwined in the EU’s customs rules and procedures than the rest of the UK.

Northern Ireland would retain full membership of the EU customs union, while Great Britain would be in a separate customs union with the EU.

The outcome of this complex arrangement is that the whole of the United Kingdom would be in a single customs territory with the EU.

That means there would be no tariffs on goods passing between anywhere in the UK and the EU, but declarations would have to be made (not involving any kind of border checks) for goods passing from Great Britain to Northern Ireland.

It is a carefully crafted fudge, in other words, with which no-one is entirely happy.

This section spells out clearly the implications of Northern Ireland remaining in the EU’s single market for goods while the rest of the UK does not.

Again, there are no surprises here, but the Attorney General emphasises that, for regulatory purposes, Great Britain would be treated as a third (or separate) country by Northern Ireland.

That means that for goods crossing the Irish Sea to Northern Ireland (but not in the other direction) regulatory checks would have to take place.

The EU has conceded that many of them (on things like product standards) could take place online or away from ports or airports.

But that is not the case for checks on food and animal produce. There are already checks on live animals arriving in Northern Ireland from Great Britain, but this would be a much broader system of controls.

This point is already clear in the text of the Withdrawal Agreement, but the Attorney General is giving a legal opinion about international law: everyone says the backstop is intended to be temporary, but it could – in theory – remain in place indefinitely “unless or until” another permanent agreement takes its place.

This is only one of several ways in which many supporters of Brexit fear a trap,

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