It is now clear that the Brexit deal has not been changed and the demands of the hardline anti-European MPs for the Withdrawal Agreement to be re-opened have been rejected by the EU27, writes Denis MacShane.
Denis MacShane is the UK’s former minister for Europe.
The Attorney General Geoffrey Cox has made clear that the very thin new words offered by Jean-Claude Juncker on Monday night do not give sufficient legal guarantees that the UK could walk away from the backstop, and thus threaten peace in Northern Ireland.
So the deal faces being voted down as in January unless Mrs May decides not to risk such a humiliating defeat. Mrs May now has one last option. That is to pivot to accepting that the UK stays in the Customs Union. This will win support from enough opposition MPs and a substantial number of Tory MPs and the DUP to pass.
It will be opposed by veteran anti-EU Tory MPs and ministers Mrs May has sacked. But they are a minority in the Commons. Let us see if she has the leadership qualities to do this. Adding the Customs Union to the deal is now the only escape route for Mrs May.
In effect, the backstop on the border in Ireland – now confirmed by Attorney General Cox as definitive – means the UK stays de facto in the Customs Union. If that is the political reality why not make it a political virtue? Saying the UK will stay in Customs unions means:
1 Labour will support it (Jeremy Corbyn claims it is his policy);
2 So will all other non-government parties including most significantly the DUP;
3 It will be enthusiastically supported by the business community, CBI, BCC, City, industrial federations, trade, Airbus etc;
4 It will be welcomed by most of the media and BBC;
5 It will be welcomed by leaders of national assemblies in Scotland, Wales, N Ireland and all big cities;
6 It will be hailed as statecraft and leadership as Mrs May finds a way out;
7 It will be supported by at least 200 Tory MPs probably more.
It will upset hardline pro-Brexit Tories who believe in the fantasy that outside the EU there are wonderful new trade agreements to be had. This illusion has lost its allure especially as it appears to involve importing unhealthy food from the USA produced in unacceptable conditions. It also implies opening the door to visa-free access to 1.3 billion Indians.
Will the Tory Party split over this? No. Brexit goes ahead in the sense that the UK ceases to be a signatory member of the Treaty, the House of Commons is the only sovereign source of law, the UK will only obey EU laws and regulations if its national parliament accepts them.
These lines are enough for Tory MPs to persuade their rank and file members and activists that they should support the deal + Customs Union.
No-one has any insight into Mrs May’s mind. It is her decision alone. But unless she wants to embrace the proposals put forward by her predecessors John Major, Gordon Brown and Tony Blair to suspend or extend the Article 50 process, to launch one or two years of bi-partisan consultation, in effect putting on ice the 2016 referendum decision she has to find an alternative.
She can cut the Brexit Gordian knot by inserting staying in the Customs Union into the Withdrawal Deal and obtaining Parliamentary approval. It would mean facing down the ugly extremists of a full amputational Brexit headed by Sir William Cash, David Davis, Sir Bernard Jenkin and Boris Johnson and other veterans of the 25 years of Tory civil war over Europe.
But the country and many Tory MPs are bored with their self-importance and would want to move on.