Backstop means backstop
It’s not often that a legal opinion creates as much interest as we saw in early December 2018 over the six-page letter written by the Attorney General Geoffrey Cox to the UK Government about the Brexit withdrawal agreement.
And, as with so much of the current shenanigans around Brexit, the interest is much more about politics and constitutional matters than about the law. It appears, for example, that this was the first time in history that the UK Government has been found to be in contempt of Parliament – by failing to lay before Parliament the full text of that legal advice.
The legal advice itself is not at all surprising. When parties agree that a certain position will continue or will come into effect unless they agree something else – a “backstop” or “default” position – it shouldn’t be any surprise to receive legal advice that neither party can unilaterally alter that position and that the backstop position will remain in place unless and until the parties are able to agree something else.
The scenario is not unusual. In their desire to get a contract in place, parties often leave some matters, even key matters, to be agreed at a later stage. There needs to be a fall-back position which will apply if agreement still cannot be reached. You cannot force the other party to agree something. It may seem attractive at the time to park those key issues to be resolved later if it proves just too difficult to find a solution now. But, perhaps as with the Northern Ireland backstop, there is a reason why a solution cannot be found at the point of entering into the agreement.
At least the Government did take legal advice on the position.
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