New legal advice about Theresa May’s revised Brexit deal warns the United Kingdom could remain tied to the European Union forever.
The bombshell advice threatens to destroy any hope the government had of getting the deal – reworked after a dramatic last-minute trip to France yesterday – approved in a tense vote due in hours. Another rejection will have uncertain consequences, for Brexit, May and her government.
British MPs in the House of Commons will vote today on the revised deal that could pave the way for the United Kingdom to leave the European Union in 17 days.
The Withdrawal Agreement they have been tharshing out would set the terms of the UK’s departure from the bloc it has belonged to for 40 years, and provided a transition period to begin at the end of this month through until December 2020 which would essentially be business as usual. Temporary measures would cover the relationship between the two if no trade deal had been locked in by then.
It’s these measures, especially how to deal with trade between the Republic of Ireland in the EU and the UK territory of Northern Ireland, that saw the agreement rejected by a historic 230 votes in January.
May appeared to have won important concessions during her Strasbourg – but it is unclear if rebels in her own party will be convinced enough to change their votes and swing her way.
Late last night it emerged May’s own legal adviser warned the deal could mean the UK stayed trapped in the EU permanently.
Attorney-General Geoffrey Cox seriously damaged her chances of winning over rebel MPs – warning that the “risk remains unchanged” of the backstop lasting indefinitely if trade talks break down.
Cox urged the Commons to back the deal, but admitted it does not provide the escape route Brexiteers have demanded.
In a letter to the PM, he said the fixes negotiated with the EU do “reduce the risk” of Britain getting trapped in the backstop as a result of Brussels failing to take trade talks serious.
But he concluded that if negotiations on a future trade deal break down due to “intractable differences”, there was still no way for Britain to end the backstop agreement and quit the European customs union.
The Labour Party opposition’s Brexit chief Keir Starmer said Brexit was “in tatters”.
“The Attorney-General has confirmed that there have been no significant changes to the (EU) withdrawal agreement despite the legal documents that were agreed last night,” Starmer said in a statement.
“The government’s strategy is now in tatters.”
The debate on the motion to support the deal is currently being held in the Commons. May sounded exhausted and losing her voice during her hour-long speech.
“Support this deal, in which case we leave the European Union with a deal. Or risk No Deal, or no Brexit. These are the options,” she said.
“Members across this house should ask themselves if they want to make the perfect the enemy of the good.”
To emphasise the point, she added: “This is the moment and this is the time – time for us to come together, back this motion and get the deal done.”
She added: “If this deal is not passed then Brexit could be lost.”
Frantic lobbying remains underway in the British capital as the clock ticks closer to the vote. But in a sign the momemtum was falling away from the deal passing, Northern Ireland’s DUP who prop up her minority government, have indicated they would not support it.
Many Conservative MPs have said they would take the way the DUP MPs voted when considering their own positions.
Despite that, British political journalists report a significant number of MPs who voted the deal down previously would now support it. But with a 230 deficit to overcome, the question remains how many she will be able to convince.
The main concern for the DUP is whether the UK could lawfully exit the backstop, party leader Arlene Foster said in a statement.
During a press conference on Monday night (local time) EU president Jean-Claude Juncker confirmed extra legal assurances had been agreed, but warned: “there will be no new negotiations”.
“It’s this deal or Brexit might not happen at all,” he said.
He urged British politicians to back the Brexit withdrawal bill after agreeing to the new legal guarantees with Prime Minister Theresa May.
“Let’s bring the UK’s withdrawal to an orderly end,” Juncker said.
The parliament is due to vote on May’s deal again on Tuesday and if it’s not supported, politicians will vote over the following two days on whether to leave the EU without an agreement — an idea likely to be rejected — or to ask the EU to delay Brexit beyond the scheduled March 29 departure date.
May warned last week that any delay could mean “we may never leave the EU at all.”
If this deal and no deal were both rejected this week by MPs a new Brexit referendum or a “softer” withdrawal from the EU lot more likely, he said.
There could also be repercussions for May, with some believing she won’t be able to hang on as Prime Minister if the vote fails.
EUROPEAN UNION GRANTS MAY LAST-MINUTE CHANGES
On Monday, May secured “legally binding changes” to address some of the concerns about the original deal, in particular on the Northern Ireland backstop.
She hopes the changes will overcome concerns about the backstop, which is a mechanism to keep an open border between Northern Ireland and Ireland.
The backstop keeps the UK in a customs union with the EU until a permanent trading relationship is in place. This avoids the need for a hard border between Ireland, which is still part of the EU, and Northern Ireland, which is part of the UK.
However, British politicians have previously rejected the deal as some are worried the backstop could be used to bind the UK to EU regulations indefinitely.
In order to address these concerns May announced the creation of three documents: a joint instrument, a joint statement and a unilateral declaration.
May said having an insurance policy to ensure there was no hard border was “absolutely right” but it could not become a permanent arrangement or a template for a future relationship.
May said the deal in January was not strong enough in making that clear.
“Legally binding changes were needed to set that right,” she said.
This includes a commitment that the EU could not act with the intention of applying the backstop indefinitely.
“If they do it can be challenged with arbitration and if they are found to be in breach, the UK can suspend the backstop,” May said.
She said there was also a legal commitment that whatever replaces the backstop did not need to replicate it.
The last-minute agreement comes just 17 days before Britain is scheduled to leave the EU.
WHAT IT MEANS
May’s de facto deputy David Lidington said London and Brussels had agreed a “joint legally binding instrument” on the withdrawal text that governs Britain’s exit terms, and which includes the controversial “backstop” plan.
This document “provides confirmation that the EU cannot try to trap the UK in the backstop indefinitely, and that doing so would be an explicit breach of the legally binding commitments that both sides have agreed”, he said.
The backstop would keep Britain in a customs union with the EU if and until another way — such as a new trade deal — could be found to avoid checks on the Irish border.
If the EU did breach its commitments to try to find an alternative to the backstop, Lidington said Britain could use this legal document “as the basis for a formal dispute through independent arbitration”, and ultimately get the backstop suspended.
The document also emphasises that both Britain and the EU want to find an alternative to the backstop by December 2020.
Finally, it would put assurances from European Commission chief Jean-Claude Juncker and European Council president Donald Tusk over the temporary nature of the backstop “onto a legally binding footing”, Lidington said.
A second document has also been agreed, supplementing the political declaration which sets out hopes for a UK-EU trade deal, to outline commitments from both sides on moving swiftly to this new relationship.