Ahead of Theresa May’s latest push to win last-minute changes to her Brexit deal on Monday (11 March), a UK official told EURACTIV the only thing that could get it over the line was if the UK Attorney General could conclude that the threat of having an indefinite Irish border backstop has now been removed.
But Geoffrey Cox, the UK government’s chief law officer, said on Tuesday that the latest joint declaration from May and Commission boss Jean-Claude Juncker was not enough, suggesting that her Withdrawal Agreement faces near-certain defeat when MPs pass judgement later this evening.
On Monday night, May said she had obtained “legally binding” changes to the Irish backstop in the form of a joint instrument with the aim of replacing the backstop with a permanent solution by December 2020.
That briefly raised hopes that May’s piece of political theatre had paid off and that the seemingly intractable problem of how to avoid a hard border on the island of Ireland without hiving off Northern Ireland had been resolved. They did not last very long.
Though Geoffrey Cox was not part of May’s late-night visit to Strasbourg, he has emerged as a key player in the Brexit negotiations. That led many in Westminster to conclude that his three-page legal opinion published on Tuesday was ‘terminal’ to May’s deal.
Cox’s opinion concludes that the instrument and declaration agreed by May and EU negotiators would still not allow the UK to unilaterally decide to leave the Irish backstop, the key demand of Conservative MPs.
The “legal risk” of the UK being trapped in the Irish backstop “remains unchanged”, advised Cox.
“If through no such demonstrable failure of either party, but simply because of intractable differences…the United Kingdom would have… no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”
If the UK wanted to suspend the backstop, it would have to get an arbitration panel to agree, and any matters of EU law would be referred to the European Court of Justice.
The opinion is not entirely dismissive of May’s efforts, stating that it does “reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.”
That is not likely to be enough to convince enough MPs to overturn the 230 majority against the Withdrawal Agreement in January.
On Tuesday afternoon, the pro-Brexit Democratic Unionist Party, the largest party in Northern Ireland, indicated that its MPs will not back the Withdrawal Agreement.
For their part, lawyers for the European Research Group of more than 90 Eurosceptic Conservative MPs, stated that the Joint Instrument and declaration agreed by May and Juncker “do not provide any exit mechanism from the protocol”.
The ERG’s eight-member ‘star chamber’ of lawyers added that “the suggestion that “bad faith” by the EU could provide a legal route for the UK out of the protocol is not credible in practice within any determinate or reasonable timeframe.”
Without the substantial legal changes that it sought, May’s government is falling back on threats. At a meeting of her MPs, May is believed to have warned her party that defeat would risk the UK staying in the EU and of a long-term party split.
The UK’s concerns should not be dismissed out of hand. The backstop is not intended, or ever likely, to be used. But if it were, it would effectively carve Northern Ireland from the rest of the UK into a permanent customs union with the EU. It is hard to imagine any EU member state being sanguine about a similar situation on its own territory.
However, that does not explain why David Davis, then the Brexit Secretary, and May negotiated and agreed to the backstop back in December 2017, causing a problem for the Conservative party that has rumbled on without resolution ever since.
“The government signed up to it in good faith thinking it was a good deal at the time,” said one UK official.
The question of the Irish backstop has been the most intractable problem throughout the two years of Article 50 talks.
“These improvements do make a difference,” Cox told MPs on Tuesday, adding that the prospect of the backstop coming into force without the UK’s consent was “highly unlikely to occur”. Lawmakers had to make “a political judgement”, he said.
They will. But that judgement is unlikely to be the one the prime minister is seeking.
[Edited by Zoran Radosavljevic and Sam Morgan]