EU backstop 'illegal in current form', law firm claims

An international law firm have concluded that the hated backstop is, in its present form, “illegal as a matter of EU law”.

Going through the EU’s own position, Herbert Smith Freehills say: “The backstop exposes a major inconsistency in the position of the EU which has argued that Article 50 only allows the conclusion of an agreement that deals with separation issues, not agreements setting out a future relationship.

“The most that can be done, the EU has argued, is to include in the Withdrawal Agreement transition provisions towards a framework for a future relationship that could at best be defined in a political declaration of intent.”

But as they point out: “The backstop as it has finally emerged is not however a transitional measure. It starts to apply only once the transition period has expired and has no end date. It applies ‘unless and until’ an alternative is agreed, as is of course the case for any international agreement.

“At the very least, the backstop should, in order to qualify as transitional, be terminable unilaterally by a party on notice.

“Accordingly, on the basis of the EU’s own view of what is legally allowed under Article 50 and on the basis of which the negotiations proceeded, the backstop in its present form is illegal as a matter of EU law.”

They argue that there are two possible solutions: either to move the backstop to the political declaration to give it an expiry date that means it can be terminated.

The deal the European Union are seeking to inflict on the UK is not just bad, it doesn’t even stand up to serious scrutiny. Urgent changes needed or the UK should leave with No Deal.

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