Brexit backstop: Is it a new deal?

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Following last night's dash to the EU and the headlines this morning, the question is every lawyer's mind is: what are the documents and what is their legal effect?

The issue:

The arrangements for Northern Irish backstop are set out in the EU Withdrawal Agreement and its accompanying Protocol to the Withdrawal Agreement on Ireland and Northern Ireland.

In essence, the effect of the backstop provisions of the Protocol are to prevent the return of a hard border between Northern Ireland and the Republic of Ireland by requiring Northern Ireland to follow EU single market rules, whilst maintaining the UK as a whole within a customs union with the EU.  The backstop is not subject to a time limit.

In December 2018 the Attorney General gave legal advice that the backstop "would endure indefinitely until a superseding agreement takes its place in whole or in part."

Art.178 of the Withdrawal Agreement allows for "temporary suspension" of parts of the Agreement if either side is found to have acted in breach of the good faith/best endeavours obligation, but the Agreement does not include a mechanism for unilateral exit from the backstop.

The fear therefore is that the UK will, unless it agrees to EU proposals for the future relationship, be forever trapped in the backstop arrangements.

The 11 March 2019 announcement

The measures announced in the evening of 11 March were as follows:

(1)  A joint EU-UK Instrument relating to the Withdrawal Agreement.
(2)  A joint EU-UK Statement supplementing the Political Declaration.
(3)  A unilateral declaration made by the UK stating its understanding of the operation of certain provisions of the Withdrawal Agreement and Protocol.

What is their legal effect?

In short: very little.

The additional emphasis on good faith negotiations does not add much of substance to the existing obligations and in any event, nothing in the further documents deals with the position where future negotiations become deadlocked simply because the parties are unable to agree to each other's demands. Were that to transpire, it remains the case that the backstop will endure unless and until it is replaced by a subsequent agreement.

For a detailed analysis, there is an excellent piece by David Anderson QC and his team, available here.​

Samantha Broadfoot QC

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