Desperate efforts by the Government to show how a post-Brexit UK might terminate the Northern Ireland backstop are today dismissed by some of the leading legal minds on international and EU law.
Geoffrey Cox, the Attorney General, is in talks with the Democratic Unionist Party and hardline Conservative supporters of Brexit about finding ways for them to withdraw their opposition to the Brexit deal. These discussions revolve around whether the UK could use the Vienna Convention’s Article 62 to pull Britain unilaterally out of the backstop - or to do so through an arbitration mechanism established by the Withdrawal Agreement.
But, in a nine-page legal opinion published this morning, Lord David Anderson QC, Jason Coppel QC, Sam Wordsworth QC and Sean Aughey reject both schemes, saying: “In our view, these propositions provide no basis for the Attorney General to revise his previous assessment of the legal risk of the UK being held in the backstop against its will.”
They point out that, in relying upon Article 62 of the Vienna Convention, the Attorney General has merely recited “a general principle of law which applies to any treaty” and his “advice adds nothing of value”. However, it is “unprecedented” for a State successfully to invoke Article 62 to justify termination of a treaty.
They also specifically reject the argument that “breakdown in negotiations could amount to a fundamental change of circumstances”. That is not only foreseeable but has been foreseen by the UK and is provided for in the Protocol.
They say the proposition on arbitration is “plainly wrong and departs from the Attorney General’s own previous legal advice” because any tribunal would only have the power to determine whether the EU had acted in breach of its legal obligations – not rule on a claim that the backstop is no longer necessary or to order termination of the backstop.
Notes to Editors:
The legal opinion commissioned by the People’s Vote campaign was drawn up by:
David Anderson (Lord Anderson KBE QC) is described in the major legal directories as “the leading EU public law silk” (Chambers & Partners, 2019) and “the top barrister for EU law” (Legal 500, 2018-19). He has been listed by The Times as one of the UK’s 100 most influential lawyers, by the Halsbury Legal Awards as “Legal Personality of the Year”, and by the Evening Standard as one of London’s 1000 most influential people. Having served for six years as Independent Reviewer of Terrorism Legislation, in 2018 David was awarded KBE In the Queen’s Birthday Honours for services to national security and civil liberties. In July 2018 he was introduced to the House of Lords as a cross-bench “People’s Peer”. http://www.brickcourt.co.uk/our-people/profile/david-anderson-qc
Sam Wordsworth QC is a highly regarded public International lawyer, who is regularly instructed in the most high profile International law cases before the ICJ, including acting for the UK in the recent ICJ Advisory Opinion on the Chagos Islands, acting for Russia in the dispute with Ukraine over Crimea and Eastern Ukraine, and acting for Iran in its dispute with the USA over the recent US sanctions. He was also instructed in the Slovakia/Hungary case which is the leading ICJ case on fundamental change of circumstances.” https://essexcourt.com/barrister/samuel-wordsworth-qc/
Jason Coppel QC is a leading public law silk, with a strong record of acting both for and against the Government in constitutional and EU law cases. He was part of the Government's legal team in the Gina Miller Article 50 litigation and in its Brexit-related litigation against the Scottish Government. His advice to the Equality and Human Rights Commission was extensively quoted in Parliamentary debates on the EU Withdrawal Bill. He was EU and Competition Law Silk of the Year 2018. Link: https://www.11kbw.com/barristers/jason-coppel/.
Sean Aughey is described in the legal directories as “absolutely fantastic for public international law” (Legal 500, 2018-19). He is regularly instructed in high-profile cases before the International Court of Justice and international tribunals. Link: https://www.11kbw.com/barristers/sean-aughey/.
The full legal opinion can be read here: https://bit.ly/2udWNCk