The Government is already on the rack over its refusal to publish the legal advice provided on the Brexit deal by Attorney General, Geoffrey Cox, despite a parliamentary motion ordering it to be done.

Cox will make a statement on the matter in the House of Commons later today (Monday 3rd December), during which he will doubtless be questioned about the leak in the Sunday Times of a letter he wrote in which he admitted that the UK would be trapped “indefinitely” in a customs union with the EU if the backstop comes into effect.

But ministers now face further questions as it emerges that a confidential analysis of the Withdrawal Agreement by the House of Commons’ own expert legal team comes to the same conclusion as President Trump – that Theresa May’s Brexit deal would prevent the UK from entering trade deals with countries such as the US.

The bombshell is contained in a 27-page legal note prepared by the House of Commons EU Legislation Team, which is headed by Arnold Ridout, its Counsel for European Legislation. A highly respected specialist in EU Law, he has previously worked for the EC Commission’s Legal Service and advised the European Secretariat of the Cabinet Office and prior to taking up his current role in 2014, he was Deputy Legal Adviser to the House of Lords EU Select Committee.

The note – marked ‘not for general distribution’ and obtained by BrexitCentral – is dated 26th November and states that the UK-EU customs union which would come into effect if the backstop is triggered “would be a practical barrier to the UK entering separate trade agreements on goods with third countries”.

This is in direct contradiction to the Prime Minister who has insisted that her deal will allow the UK to have an entirely independent trade policy. Indeed, she told the House of Commons just last Monday how “for the first time in 40 years, the UK will be able to strike new trade deals and open up new markets for our goods and services”.

The legal note – titled The Withdrawal Agreement: Legal and Governance Aspects – also appears to suggest that the Prime Minister’s claim (also repeated last Monday) that her deal “takes back control of our laws” by ending “the jurisdiction of the European Court of Justice in the UK” with “our laws being made in our Parliament, enforced by our courts” does not entirely stand up to scrutiny.

In its summary of “Continued application of EU law”, the note states:

EU law will apply during the TIP [transition or implementing period], but essentially without formal UK participation in its making;

EU law will apply after the TIP to protect the rights of EU citizens in the UK. This could extend for some considerable period.

EU law also will apply after the TIP in relation to the Separation Issues and the Financial Settlement. Again, this could extend for a considerable period.

EU law will apply extensively, particularly in Northern Ireland, under the “Backstop” found in the Ireland/Northern Ireland Protocol.

EU law in relation to goods, turnover taxes, agriculture and fisheries as well as veterinary and phytosanitary rules will apply in the Sovereign Base Areas of Cyprus.

After the end of the TIP the CJEU will continue to determine the interpretation of EU law applicable under the WA by the mandatory reference procedure from the arbitration panel.

Moreover, if the backstop has been triggered and the UK-EU customs union established, it adds that:

“The UK will conform to specific EU legislation on customs, including with respect to third countries. To provide a ‘level playing-field’ the UK commits to non-regression (from the law as it stands at the end of the TIP) on EU environmental protection, labour and social standards, state aid and competition and state-owned undertakings in respect of administration of tax…. On the UK side of the customs union, in the ‘United Kingdom in respect of Northern Ireland’, specific additional EU legislation applies on customs, certain VAT and excise, and certain technical standards relating to goods”.

Another section in the document which caught my eye concerns what happens when the proposed Joint Committee (of representatives of both the EU and UK) which supervises the Withdrawal Agreement and the backstop cannot reach a consensus on certain issues:

“Both UK and EU are represented on the Joint Committee, so no decision may be made without the UK’s agreement. This may not be the same thing as the two parties having equal power, as the aims of the parties will matter. If the Joint Committee is unable to reach a decision, in some circumstances, that will block next steps. The party that wants those next steps to occur, will then be at a practical disadvantage. By way of example, i) the Joint Committee sets the limits of state aid that can be authorised by the UK for agriculture. If limits are not agreed, state aid may not be authorised.”

In other words, in those circumstances the UK would not be free to set levels of subsidy for UK agriculture, but the EU would remain free to adjust its Common Agricultural Policy however it liked. EU products would therefore have open access to the UK market via the customs union, while Brussels could stop us subsidising agriculture at all unless it was agreed in the Joint Committee.

And given that the proceedings of the Joint Committee will be confidential, the document concludes that “the absence of transparency would impact on any proposal for Parliamentary scrutiny of the UK participation in the working of the JC”.

Meanwhile, many readers will have concerns about the potential for the UK being disadvantaged over the working of the arbitration panel appointed for the purposes of dispute resolution. It will comprise five people: two nominated by each party and a chairperson from a list agreed by both, and also be encouraged to try to take decisions by consensus, but can decide by majority.

As the legal note explains:

“This raises the prospect of a decision adverse to the UK on the view of the EU appointed panel members and the jointly appointed chairperson outvoting the view of the UK appointed panel members.”

Reacting to the contents of the document, Conservative MP Marcus Fysh, who sits on the International Trade Select Committee and European Scrutiny Committee, told BrexitCentral:

“This document identifies and explains many of the very serious legal problems for the UK that would emerge from the Prime Minister’s proposed Withdrawal Agreement, should it be approved. It is wishful thinking and irresponsible to accept the Government’s spin of this damaging legal reality, or to think it could be used as a basis for successful further negotiation. I don’t believe any MP in possession of these facts could in good conscience ignore them and support the Withdrawal Agreement.

“The EU and UK have a great future as friends, but this is not the way to achieve it. Let’s waste no more time, prepare for all eventualities, and work constructively for an advanced but regular Free Trade Agreement which respects the independence and integrity of our jurisdictions while making trade and community relations smooth, effective and efficient. We have set out how to do this, contrary to the Government’s attempt to say otherwise, and there is no reason a plan and schedule for ratification of such an agreement cannot be agreed by the end of March so conditions remain smooth from the end of March until that happens. That is the way to preserve the faith the people of the UK have in their politics, and we need a Government that will ask for it.”

You can view the leaked document for yourself below or by clicking here to see it as a pdf.

Withdrawal Agreement Legal and Governance Aspects

