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Attorney general is wrong person pursuing the wrong policy

by David Hannay | 09.03.2019

David Hannay is a member of the House of Lords and former UK ambassador to the EU and UN.

For those of us rendered helpless spectators to the legal writhing going on in Brussels, there can be little hope of a happy outcome. The government is trying to wriggle out of the commitment to the Irish backstop it entered into, with its eyes open, last November and the December before that.

The process itself is pretty humiliating to the government of an EU member state which used to pride itself, with some justification, as having as good coordinating machinery and as professional negotiators as any in the bloc. Neither of these qualities have been much in evidence in the last two and a half years. But, worse than that, the government is trying to find a legal fix to a policy problem of its own making.

EU negotiations do require plenty of legal expertise and, after more than 45 years of membership, there is plenty of that expertise stacked up in Whitehall and around the country, in universities, in the Inns of Court and elsewhere.

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But never in those years of membership has the Cabinet sent its principal legal adviser to lead negotiations in Brussels. With good reason. Because Brussels is stacked high with lawyers only too ready to lock horns over the finer points of the interpretations of treaty texts. So, even if there were no doubts over the suitability of Geoffrey Cox, the present attorney general, for the task he has undertaken – and there are plenty of such doubts – putting a highly political lawyer in charge of the negotiations was never going to be the right way to set about it.

Why not? Because this problem is far more about policy choices than it is about legal fixes. The government has impaled itself, since the outset, on two contradictory objectives – to avoid a hard border between the two parts of Ireland, and to do so while quitting the EU’s single market and customs union so it can operate an independent trade policy. Now that inbuilt contradiction is coming home to roost. Yet the government remains in a state of denial over whether it even exists – hence the search for a magic technological solution which will simply make it vanish.

The simplest solution to the contradiction lies in negotiating a customs union with the EU and in maintaining the degree of regulatory alignment needed to avoid border checks. The customs union remedy was voted for again this week by the House of Lords, against government opposition, in an amendment to the Trade Bill. That means it will necessarily come back to the Commons for décision in the near future.

But this solution is being sacrificed on the altar of the Brexiters’ fixation, despite all the evidence that, even in the most optimistic of scenarios, we will not be able to compensate for the loss of frictionless trade with the EU, by new market access elsewhere.

Next week, when all these issues come back to Parliament, there will be important decisions to be taken. If the prime minister’s deal, however tweaked, fails to gain a majority, as it deserves not to do, then other possibilities, including giving the electorate a say in whatever solution does then emerge, will come to the fore.

Edited by Luke Lythgoe