A Practical and Legal Solution to the Backstop Problem

A Legal Sleight of Hand

The problem of the Backstop in the Withdrawal Agreement can be solved by creating legal fictions. This can be done until the UK formally applies to leave the EEA (European Economic Area) and signs up to the EU’s/Mrs May’s Withdrawal Agreement (WA).  The European Union (EU) and the European Court of Justice (ECJ) have form with legal fictions to facilitate the EU’s political agenda and to regularise de facto situations; it is different in function from UK Courts. The recent Article 50 Judgment from the ECJ also creates some useful precedents. Legal fictions would allow continuing membership of the EEA on more advantageous terms and permit largely frictionless trade, as at present. These terms could, for example, include unilaterally controlling freedom of movement, and enabling the UK to be excluded from legislation following the EU’s politically motivated agenda, an obvious objective of the Referendum vote to leave.

The Backstop creates a border between inside and outside the Single Market

In her Lancaster House speech 17^th January 2017, Mrs May committed this country to leaving the Single Market. This action made a Backstop inevitable in order for the EU to protect the Single Market (and wider EEA). In effect the Backstop creates an essential border between the Single Market and those Third countries outside; in this case in the Irish Sea between parts of the UK. The border effectively prevents non-conforming products entering the Single Market (by the backdoor) and helps protect humans, animals, and plants from diseases, pests, or contaminants.

The Transition Period Creates a Legal Fiction to avoid a Backstop

Although the UK is supposed to be leaving the EU on 29^th March 2019, the EU is permitting us to remain within the Single Market, hence avoiding the need for an external border with mainland Britain. For this arrangement the EU is insisting on oversight by the ECJ, continuing to follow all EU laws, permit freedom of movement and remain subject to the Common Fisheries Policy. Yet supposedly only Member States of the EU or countries belonging to EFTA (the European Free Trade Association) can participate as members of the EEA.

If the UK does not formally leave the EEA in accordance with Article 127 of the EEA Agreement it obviously still remains a member. However, since the UK could have already left the EU and not have joined EFTA, it may be prevented from fulfilling some obligations of the EEA Agreement.  Yet, as already noted, this didn’t seem to be much of a concern during the Transition Period – workarounds (including legal fictions) were found by the EU for a price.

The ECJ Judgment on Article 50 facilitates helpful Legal Fictions

The ECJ in reaching its Judgment emphasised the paramount role of national sovereignty. It concluded that a Member State could, within its ‘rights’ to national sovereignty, revoke its application to leave the EU before departure occurred.  This somewhat sets a precedent when it comes to taking actions connected to national sovereignty for a political purpose or to avoid EU actions, policies, treaty obligations or EU laws which have clear political objectives.  It would imply that the political objectives of the Referendum cannot be thwarted by the EU.  Staying actively within the EEA under different circumstances would seem then to be feasible.  However, there are legalistic and administrative gaps that would need to be filled, and the EEA does not cover everything. The point being that, in order to comply with the ECJ Judgment if pushed by a competent UK team, the EU would be required to be more flexible (or inventive) than it has been to date.

Exclusion from the Political Objectives to the Single Market

When reading EU legislation relating to the Single Market, the political agenda can be visible.  Also by tracing back policies to their origins, it can be seen that their superior objectives are political. Thus freedom of movement of persons was intended as part of creating a common citizenry of a European Superstate rather than for any (questionable) economic benefit.  Since the Referendum result was to leave the political control of the EU, it would be an automatic requirement to seek to be excluded from the political objectives of the EU incorporated into the laws of the Single Market. This can already be facilitated to some extent within the EEA Agreement. The EEA Agreement Article 112 (the Safeguard Measures) does permit unilaterally controlling it by members who are outside the EU, (the EFTA countries).  Following the ECJ Article 50 Judgement, it should be possible to extend this principle further as and when required, if necessary by creating legal fictions.

A Court for Fair Dealing and to avoid the EU’s Political Agenda

Jurisdiction by the ECJ and oversight by the EU in the UK are unwanted, yet the EU would want some acceptable alternative. The Withdrawal Agreement seems to suggest arbitration may be an acceptable compromise. Other possibilities include using the UK Courts or EFTA Court, even if the UK is not actually a member of EFTA.

A court for fair dealing is essential to ensure that the EEA acquis or body of law (derived from higher Global Bodies and about 27% of the EU acquis), is kept within reasonable limits. The Withdrawal Agreement clearly shows that the EU will if left unchecked try to extend its control following its political agenda. In case of dispute or until new habits are acquired this needs to be prevented.

Always a Better Way

Unsurprisingly better alternatives or solutions to complex problems are never the first thoughts; it takes time. Mrs May made a reckless decision to leave the Single Market and wider EEA and has been trying ever since to find a solution to conflicting objectives.  It can’t be done and instead creates an unworkable nightmare and Brexit in Name Only. Yet, if the will is present, there is a win-win solution.