The Irish border backstop provision in the Brexit deal could continue indefinitely “unless and until it is superseded” by a new agreement, according to Government legal advice.
The position statement released on Monday also said the UK faces paying extra money to the European Union if the implementation period after the March departure date has to be extended.
Attorney General Geoffrey Cox said he would have preferred the UK to be able to unilaterally terminate the backstop arrangement, while Theresa May’s chief Europe adviser Olly Robbins admitted the situation was “uncomfortable”.
The backstop is highly controversial, with Brexiteer MPs claiming it traps the UK into obeying rules set by Brussels without a say over them.
The 43-page Legal Position On The Withdrawal Agreement was published after the Government lost a parliamentary vote calling for the full legal advice to be released.
Opposition parties in the Commons – including Theresa May’s DUP allies – said the document and a statement by Mr Cox failed to meet the terms of the vote and asked Speaker John Bercow to launch contempt of Parliament proceedings.
The row came after Theresa May told Tory MPs to “hold their nerve” and back her Brexit deal, insisting she would still have a job in two weeks’ time as she faces a crunch December 11 Commons vote on her EU Withdrawal Agreement.
The dense legalese paper states the backstop “protocol”, which would take the whole of the UK into a customs arrangement with the EU to avoid a hard border with Ireland, would come into effect in December 2020 unless an alternative measure was in place.
The document said “in the event that a subsequent agreement is not in place by then” the “protocol will continue to apply unless and until it is superseded, in whole in or part, by a subsequent agreement establishing alternative arrangements”.
It goes on to say “if it does start to apply then it should do so only temporarily”, with Mr Cox arguing the Article 50 process for leaving the EU does not allow a permanent arrangement to be put in place.
Mr Cox acknowledged neither the UK nor the EU had the right to terminate the backstop agreement unilaterally if it came into effect, even if talks on a future trade deal to replace it broke down.
“I make no bones about it – I would have preferred to have seen a unilateral right of termination in this backstop,” he told MPs.
He added: “I’m prepared to lend my support to this agreement because I do not believe that we’re likely to be entrapped in it permanently.”
In a letter to the Speaker, signed by shadow Brexit secretary Sir Keir Starmer, DUP Westminster leader Nigel Dodds and senior MPs from the SNP, Liberal Democrats, Plaid Cymru and Green Party, the Government was accused of failing to comply with the vote ordering the publication of the advice.
Sir Keir said: “The Government has failed to publish the Attorney General’s full and final legal advice to the Cabinet, as ordered by Parliament.
“We have therefore been left with no option but to write to the Speaker of the House of Commons to ask him to launch proceedings of contempt.”
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Earlier, Mrs May’s chief Brexit adviser told MPs the border backstop was a “slightly uncomfortable necessity” for both the UK and the European Union.
The fallback plan agreed with Brussels was “not the future relationship that either the UK or the EU wants to have with one another”, Mr Robbins told the Exiting the European Union Committee.
He said: “It is an uncomfortable position for both sides and the reality … is that there is not a Withdrawal Agreement without a backstop.
“That reflects also, as I’ve said to this committee before, ministers’ commitments to Northern Ireland and to avoid a hard border on the island of Ireland, rather than being something imposed upon us.
“So, it is a necessity and a slightly uncomfortable necessity for both sides.”
Asked if the Government had drafted a clause for the Withdrawal Agreement that would have allowed the UK to opt out of the backstop unilaterally, Mr Robbins said: “Ministers asked us to look at a whole range of options for how to bring the backstop to an end and so we did.
“And the Prime Minister and other ministers tested some of those out on European partners.
“But, what we went into the negotiation with in the end was a text that delivered the termination clause very much as it is laid out there.”
The UK faces making additional payments to Brussels if the Brexit implementation period is extended, the Government’s Brexit legal advice also said.
Under the terms of the Withdrawal Agreement, it is due to run until the end of December 2020 but can be extended by up to two years if both sides agree.
The advice says discussions on any extension would involve “reaching further agreement on the UK’s financial contribution”.