Attorney General publishes legal advice on Brexit

The Attorney has published his legal advice on Brexit. As it turns out, it focuses largely on the legal effect of the Protocol on Ireland/Northern Ireland:


1. This note sets out my advice on the question I have been asked as follows:

What is the legal effect of the UK agreeing to the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland in particular its effect in conjunction with Articles 5 and 184 of the main Withdrawal Agreement?

2. I note that the Withdrawal Agreement, of which the Protocol on Ireland/Northern Ireland (Protocol) forms part, is yet to be finalised. My advice is based, therefore, on an evolving text, which I have had to consider rapidly in light of the fluid situation.”

The Attorney concludes:

“30. … the current drafting of the Protocol, including Article 19, does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement. This remains the case even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement. The resolution of such a stalemate would have to be political.

31. The application of the Protocol must be considered in light of the option under Article 3 to extend the Implementation Period. In considering whether to agree to this, the EU will have regard to the progress that has been made towards the subsequent agreement which would supersede the Protocol. Article 132 of the Withdrawal Agreement provides that before 1 July 2020, the Joint Committee may adopt a single decision extending the transition period. In other words, the Withdrawal Agreement does not allow for more than one extension.

32. One reason why the UK may wish to seek such an extension is if the parties are close to but have not yet concluded all the terms of a subsequent agreement. It may well be the case, however, noting that the transition period lasts 21 months, that all the systems required to enter into the arrangements envisaged by the Protocol are not yet agreed or ready. In that event, both parties are likely to want to extend the implementation period, although it has not yet been agreed between the parties how long such a period could last. If for whatever reason an extension was not agreed, it is not clear what arrangements the parties would fall back on. This might be thought to make a viable date for an extension of the implementation period critical.


33. Finally, in considering any international agreement, it is important also to take into account the changing political context in which it is to operate and that the solution to any essentially political question is rarely wholly or even predominantly legal. 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. This risk must be weighed against the political and economic imperative on both sides to reach an agreement that constitutes a politically stable and permanent basis for their future relationship. This is a political decision for the Government.”

Which, perhaps, is getting rather remote from our core interest in law and religion – but the constitutional and international law implications of Brexit touch on almost every aspect of life in the UK.


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