May’s Strasbourg deal risks UK being trapped in backstop, says Attorney General
Geoffrey Cox’s legal advice delivered a significant blow to the Prime Minister’s hopes of victory in the crunch Commons vote on her Brexit agreement.
Theresa May’s last-minute Brexit agreements “reduce the risk” that the UK could be trapped indefinitely in the backstop, but do not remove it altogether, the Attorney General has said.
Geoffrey Cox’s legal advice deals a significant blow to the Prime Minister’s hopes of securing MPs’ backing for her EU Withdrawal Agreement in the second “meaningful vote” on the deal in the House of Commons on Tuesday evening.
Shadow Brexit secretary Sir Keir Starmer said Mr Cox had confirmed that “no significant changes” had been secured in two months of negotiations and the Government’s strategy was “in tatters”.
Mr Cox’s advice was issued the morning after Mrs May’s dash to Strasbourg to finalise a deal with European Commission president Jean-Claude Juncker which she said would deliver “legally-binding” reassurances for MPs to ensure the Irish backstop cannot be permanent.
The pair agreed a “joint instrument” setting out the legally-binding nature of their promises to seek alternative arrangements to avoid the need for a backstop, as well as a “supplement” to November’s Political Declaration making clear that they will seek swiftly to seal a deal on their new trade and security relationship.
Alongside these documents was a “unilateral declaration by the UK” which sets out “sovereign action” by which Britain could seek to have the backstop removed if the EU acted in bad faith.
On a day of high drama in Westminster, the Cabinet gave its backing to the package at its weekly meeting chaired by the Prime Minister at 10 Downing Street.
Mrs May said passing the vote would allow the country to move on to a brighter future, while the alternative was uncertainty with no guarantee of what happens next.
She concluded the meeting by telling ministerial colleagues: “Today is the day. Let’s get this done.”
Mrs May later headed to the Commons to address Tory MPs behind closed doors. She was due to open the debate on her revised Brexit package with a statement on the floor of the Commons.
In his advice, Mr Cox said that documents agreed in Strasbourg “reduce the risk that the United Kingdom could be indefinitely and involuntarily detained” in the backstop by EU bad faith or a failure by Brussels to use its “best endeavours” to negotiate a permanent deal on the future relationship.
Attorney General confirms that there have been no significant changes to the Withdrawal Agreement despite the legal documents that were agreed last night.— Keir Starmer (@Keir_Starmer) March 12, 2019
The Government’s strategy is now in tatters. pic.twitter.com/xBKJPy5WbL
But he warned that the question of whether a satisfactory agreement on a future UK/EU relationship can be reached remains “a political judgment”.
And he said “the legal risk remains unchanged” that if no such agreement can be reached due to “intractable differences”, the UK would have “no internationally lawful means” of leaving the backstop without EU agreement.
In a statement to the Commons, Mr Cox later said: “Were such a situation to occur, let me make it clear, the legal risk as I set it out in my letter of November 13 remains unchanged.”
Mr Cox told MPs: “There is no ultimate unilateral right out of this arrangement. The risk of that continues.
“But the question is whether it is a likelihood, politically. ”
There were now “material new obligations” on the EU to pursue alternative arrangements and it would be “unconscionable” if the EU refused to “consider or adopt reasonable proposals relating to alternative arrangements”.
Sir Keir said in a tweet: “Attorney General confirms that there have been no significant changes to the Withdrawal Agreement despite the legal documents that were agreed last night. The Government’s strategy is now in tatters.”
And senior Conservative Leaver John Whittingdale told the Commons Brexit Committee that the Attorney General’s advice was “pretty terminal” for Mrs May’s plan.
Brexit-backing Tory backbencher Andrea Jenkyns tweeted: “Nothing has really changed, and it is still a bad deal so unable to vote for this.”
Mr Cox’s advice was released as Mrs May’s agreement was being scrutinised by the so-called “Star Chamber” of Brexiteer lawyers convened by the European Research Group (ERG) of Leave-backing Tory MPs.
The panel includes Nigel Dodds, the Westminster leader of the Democratic Unionist Party, whose judgment will be crucial not only in determining the position of his own party’s 10 MPs but also many of the 118 Conservatives who rebelled against the Withdrawal Agreement in the first “meaningful vote”.
The Prime Minister needs to win over scores of Tory MPs if she is to have any hope of reversing the 230-vote defeat she suffered when the Commons considered her Brexit deal in January.
Our agreement provides meaningful clarifications & legal guarantees to the Withdrawal Agreement & #backstop. The choice is clear: it is this deal, or #Brexit may not happen at all. Let’s bring the UK’s withdrawal to an orderly end. We owe it to history. https://t.co/lfy9eehEZi pic.twitter.com/XCqcLwZV7V— Jean-Claude Juncker (@JunckerEU) March 11, 2019
She said she “passionately believed” her 11th-hour agreement had addressed concerns raised by MPs over the backstop, which keeps the UK in a customs union with the EU after Brexit to avoid a hard Irish border.
But a legal opinion commissioned from three senior lawyers by the People’s Vote campaign for a second referendum said there was “no basis” for Mr Cox to alter his advice on the indefinite nature of the backstop.
The changes secured by Mrs May do not alter the “fundamental legal effect” of the backstop and would not allow the UK to terminate it without EU agreement, found Lord Anderson QC, Jason Coppel QC and Sean Aughey.
At a late-night joint press conference with Mr Juncker on Monday, Mrs May said that three new documents provided the legal assurances critics of her stance had called for.
“Now is the time to come together to back this improved Brexit deal and to deliver on the instruction of the British people,” she said.
Mr Juncker warned that if MPs voted down the deal a second time, “there will be no third chance”. And he said that any extension of the two-year Article 50 negotiation process could not go beyond May 23 unless the UK took part in European Parliament elections beginning that day.
MPs are expected to vote at 7pm, with Environment Secretary Michael Gove saying it is “make your mind up time”.
Ireland’s Taoiseach Leo Varadkar said: “The further text agreed yesterday provided additional clarity, reassurance and guarantees sought by some to eliminate doubts or fears of some, however unreal, that the goal was to trap the UK indefinitely in the backstop.
“It is not – these doubts and fears can be put to bed.”
Dutch Prime Minister Mark Rutte said he hoped MPs would back the deal as “there is no alternative”.
If the package passes the Commons, leaders of the 27 remaining EU states will be asked to endorse the new documents at a scheduled European Council summit in Brussels on March 21-22, before the final step of ratification by the European Parliament.
Labour leader Jeremy Corbyn has called on MPs to reject the deal and accused Mrs May of a plan to “recklessly run down the clock” before March 29.