Interview: Law expert on the ‘blunt’ truth of May’s Brexit deal legal advice

Ben Wray

Theresa May tried to hide how much power would be left to the EU in post-Brexit Britain

THERESA MAY’s Government has taken a beating in parliament this week, particularly on Tuesday [4 December], where she faced a slew of defeats including a Commons vote that the government had been in contempt of parliament by refusing to release the cabinet’s legal advice on the withdrawal agreement with the EU.

The vote is a major blow to May’s ongoing attempts to get the deal passed through parliament.

But what does the legal advice tell us about the nature of the deal and the political deadlock? CommonSpace spoke to Dr Nick McKerrell, a Law lecturer at Glasgow Caledonian University who specialises in constitutional legal theory, about the legal advice and its consequences.

DJ: What was the Government most likely trying to conceal from parliament?

McKerrell: It is likely that the resistance was not so much that the content was particularly surprising. It just states the detailed reality of May’s deal with blunt legal language unpolished by political spin. So for example the Northern Irish area will be a full part of the Customs Union within the jurisdiction of the Court of Justice of the Economic Union. “Regulatory checks” will be required to take place between Northern Ireland and Great Britain.  No matter how you try to present that to the DUP it looks like very much a border in the middle of the Irish Sea.
It also baldly states that Britain would be obliged to follow obligations in certain areas like “environmental, labour, social and competition laws”.

DJ: Who were they most trying to conceal it from? Hard Brexiteers or remainer opposition?

McKerrell: Take your pick.  The legal advice essentially concedes the arrangement surrounding Northern Ireland will be permanent unless there is a concluded mutual agreement. That means both sides have to agree to it.  This goes directly against the idea that no part of the United Kingdom would be treated differently  – not only angering the DUP, but hardline right-wing Brexiteers and, according to newspaper reports, Scottish Tories like `[David] Mundell and [Ruth] Davidson.  It also does confirm for the SNP that there will be a clear differential within the UK which gives more strength to their argument to treat Scotland differently as well.  But overall it gives little to remainers as it essentially confirms how influential the EU will remain after the Exit date and in the transition period. 

DJ: What does the legal advice make clear about the backstop?

McKerrell: The legal advice is clear that under principles of international law (which would regulate the ultimate treaty between the EU and Great Britain) the arrangement for Northern Ireland “endures indefinitely” unless a new agreement is in place.  It is basic law that an agreement requires two parties – so one side cannot back out of this without an alternative in place. This would even be true if overall negotiations break down. It means ultimately the status quo of Northern Ireland being in the Single Market for Goods and the Customs Union is the default position until there is an alternative agreed by both sides in place.

DJ: What does the advice make clear about EU law and the influence the EU will continue to exert over the UK after the leave date?

McKerrell: Overall the advice shows the EU and EU Law will still be pretty powerful within the UK.  Although Great Britain is not in the same Customs Union as Northern Ireland it is in a “customs territory” and they will apply the common EU tariff for goods coming into the country.  Britain will also be required to follow many European regulatory obligations: “environmental, labour, social and competition laws” and rules of state aid for UK companies. Although these will not be upheld by the European Court, the UK Courts will be expected to follow them and indeed apply EU Law. It even raises the prospect of the European Commission being able to use the UK courts to make sure these obligations are enforced. In these fields the EU retains a large element of power.

DJ: What are the consequences, either practical or politically, of the Government being found in contempt of Parliament?

McKerrell: In one sense this is difficult to say as it has literally never happened before. Individuals have been found in contempt and faced Parliamentary punishment – being suspended from the House, even being jailed in Big Ben’s Tower! Parliament could meet as a quasi-court and announce punishment but the Labour amendment on Contempt did not name any individual so it would be difficult to pin down who it was against, though the Prime Minister as the head of the government is the obvious candidate. It just gives the general (well-earned) impression of the government being in meltdown. Though ultimately there will need to be some form of punishment for committing contempt.

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