The fate of May’s deal—and the future of the country—hinges on the decisions of just a handful of politiciansby Guy de Jonquières / March 12, 2019 / Leave a comment
From the moment late last night that Theresa May and European Union negotiators announced they had struck a revised agreement on Britain’s withdrawal from the EU, lawyers and legal commentators have been poring over the entrails of the document, trying to decide what it really amounts to.
There has been much anxious head-scratching over whether the changes to the deal that the government claims to have achieved are really changes at all, and whether its provisions relating to the vexed issue of the Northern Ireland backstop are, as the government insists, “legally binding.” Arcane details of treaty law have been unearthed and examined in an effort to determine the status of the planned unilateral UK declaration on mechanics for getting out of it.
To top it off, the European Research Group, the “party within a party” of hardline Tory Eurosceptics, has set up its own panel of lawyers, dubbed a Star Chamber, to determine whether May’s new deal cuts the legal mustard.
However, all this legalistic quibbling is, in one sense, mostly noises off. In the end, the fate of May’s deal—and the future of the country—hinges on the views and decisions of just 11 politicians. Rarely in Britain’s history has the future of so many depended on so few.
One of them is Geoffrey Cox, the Rumpolesque attorney-general, who was called upon to determine whether the revised deal was enough for him to change his previous advice that the original one, which was heavily defeated in the Commons, could have left the backstop in place indefinitely.
Cox was reported to have been “agonising” over his decision. It is easy to see why. Constitutionally, he is required to give impartial and independent advice in the interests of the whole country. On the other hand, he will be doing so as a committed Brexiteer and minister of the government that concluded the deal in negotiations in which he himself played a prominent part.
His judgment, delivered today, was carefully balanced. While stating that the risk of Britain being stuck in the backstop had been reduced, he warned that legally it remained. Nonetheless, he argued that politically the chances of that happening remained relatively small.
Cox’s advice is clearly a setback for May that clouds even further the prospects of her deal winning parliamentary approval. No votes will count for more in deciding its fate than those of the 10 members of the ultra-conservative Democratic Unionist Party, on which the government relies for its slender working majority in the Commons. Whether or not the DUP judges that the revised deal removes the risk of the backstop remaining—and the UK staying in the customs union—indefinitely will be critical.
Its deliberations are likely to be guided more by political calculations than by legal niceties. Can the party afford to settle for a deal that, on the government’s own admission, only “reduces,” but does not eliminate, the risk of a backstop that might create a permanent barrier between Northern Ireland and Great Britain? Or will it stick dogmatically to its guns and place in jeopardy both the deal and the future of a government over which it wields hugely disproportionate influence?
If the DUP opts to throw its weight behind the deal, that may persuade doubters in the ERG and the rest of the Tory party to back it as well—though whether enough would so to secure parliamentary approval remains uncertain. However, if the northern Irish party decides that is too much for it to stomach, all bets will be off and the whole future of Brexit will be plunged into deepest uncertainty.
But even if May’s deal somehow clears all these hurdles, that will not be the end of the matter. The revised agreement would need to be considered by the EU heads of government meeting later this month and then ratified by the European parliament. An extension of the two-year Article 50 period beyond 29thMarch may be needed to allow time for those procedures to be completed and to pass essential Brexit-related legislation to be enacted in the UK.
And then, if all that goes well, the UK will face the prospect of lengthy, complex and hard-fought negotiations with the EU to define their future trade and other relations. A victory for May in parliament this week would be, at the very most, just the end of the beginning of the Brexit story.