MNI INSIGHT: EU Mulls Brexit Legal Fix, Won't Win Over ERG

By Kevin Woodfield and David Robinson

     LONDON (MNI) - Brussels is considering a legal device aimed at providing

the UK with greater comfort that the Irish backstop is not designed as a

permanent customs union trap, MNI understands, but there is little prospect of

Prime Minister Theresa May buying off her hard Brexit opponents.

     MNI understands that what has become known as the Danish Protocol solution

is

     currently being 'cooked up' for a legally-binding decision of EU leaders in

the European Council.

     But previous instances where the device was deployed failed to sway members

of the European Research Group, the hard Brexit wing of Conservative MPs who

forced May through a no confidence vote yesterday which resulted in more than a

third of her parliamentary party rejecting her continued leadership.

     Such a device would take the form of a 'Decision of the Heads of State and

Government', binding in international law, designed to clarify how the

contracting parties to a treaty think it ought to be understood and applied,

Kenneth Armstrong, Professor in European Law at Cambridge University, and head

of a research project on Brexit legal issues, told MNI.

     --SAVING THE BACON

     It was first used to deal with problems in Denmark in ratifying the

Maastricht Treaty and was employed again following the problems in Ireland in

ratifying the Lisbon Treaty, Armstrong pointed out. It resurfaced for David

Cameron's renegotiation on what 'ever closer union' meant before he embarked on

the 2016 referendum.

     Opposition to the effectiveness of such a device in the context of May's

beleaguered efforts to secure her Withdrawal Agreement compromise deal may not

be limited to the rebellious ERG. Armstrong recalls, during the ill-fated

Cameron renegotiation, the then Justice Secretary Michael Gove savaged the

concept and suggested it could be overturned by the European Court of Justice.

     The clarifications would address the circumstances in which the Irish no

hard border backstop might be triggered. What May's disillusioned Irish DUP

partners as well as the ERG are most worried about is whether the UK could get

out of it should this occur.

     "It's also not clear that the [device in the Brexit case] completely holds

as it is a Decision of the Heads of State and Government of the EU Member States

about the treaties which bind those states together," Armstrong elaborated.

"Here we are talking about an agreement between the EU27 and the UK and so it

would seem at the very least have to be a decision of the EU27 and the UK."

     --POLITICAL IMPERATIVES

     Another problem for the Danish Protocol solution is that when it was

employed in Denmark and Ireland, protocols were added to the treaties to bring

these clarifications and changes directly within binding EU law. In contrast,

the EU treaties will cease to apply to the UK once it leaves.

     Finally, the device has been deployed in respect of treaties that have been

agreed and either are completely ratified or in the process of ratification,

Armstrong said, whereas the Withdrawal Agreement has been initialled but the

European Council and European Parliament have not voted on it.

     "It might be argued that the text should simply be re-opened rather than

clarified," Armstrong concluded. But he acknowledged that the political

imperative for the EU to assist May with clarifications could result in these

imperfections being overlooked.

--MNI London Bureau; +44 203 865 3829; email: jason.webb@marketnews.com

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