The attorney general’s legal advice confirms it: we are never going to leave the EU

Theresa May is heading for heavy defeat in the vote tonight – and that means Brexit is likely to be delayed, and delayed again

John Rentoul
Tuesday 12 March 2019 14:18 GMT
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Geoffrey Cox addresses MPs after devastating verdict on Theresa May's deal: The 'legal risk' remains unchanged

The attorney general's legal advice increases the chances of us staying in the EU. No wonder the prime minister looked so bleak last night. She presumably had some idea of what Geoffrey Cox, her “independent” attorney general, was going to say about the supposedly improved deal she announced in Strasbourg.

Her strategy, such as it was, was that Cox’s legal advice was the first domino. Once it fell, the DUP would fall into line too. When the DUP fell, it would take a lot of Conservative Brexit rebels with it.

But now the first domino has failed to fall. Even if Cox had changed his advice and the dominoes had fallen, I think she was heading for defeat this evening – perhaps a narrow one – and it was likely that the UK would be staying in the EU regardless. But a narrow defeat would at least have given her the hope that she could hold yet another vote and finally get her deal through parliament.

Now that hope looks forlorn. Cox, who once played the besotted Duke Orsino in Twelfth Night, says that the “legal risk remains unchanged” – the risk that the UK might be trapped in the backstop against its wishes.

He thinks the risk is one worth taking, but that is what he thought in January, when the deal was defeated by a huge margin. The whole point of the negotiations since then has been to allow him to change his legal advice, to say that we couldn’t be trapped in the backstop.

He hasn’t changed his advice at all. Even the phrase in an earlier paragraph, that the new documents announced in Strasbourg “reduce the risk” applies only “in so far as that situation has been brought about by the bad faith…of the EU”.

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In fact he says that, though the instruments are legally binding, the chances of replacing the backstop are a matter of “political judgement”. But the political judgement made by more than 100 Tory MPs in January was that they don’t like it.

They did not believe in January that the backstop was a good way to guarantee an open border in Ireland. The only thing that has changed now, then, is that time has run out.

There is no time to negotiate the “alternative arrangements” to keep the border open, so MPs have to decide whether the backstop is so bad that they want to delay Brexit, or whether it is better just to get out and live with the defects, as Michael Gove urges them.

Some Tory MPs will switch their vote. But there are too many who will vote against the deal, knowing that this means Brexit will be postponed. They know now that leaving the EU without a deal is not possible. If the deal is defeated tonight, the Commons will vote against a no-deal Brexit tomorrow. After that, the Commons will vote to seek an extension to the Article 50 deadline.

And my view is that once Brexit is delayed once, it will be delayed again, and again. The prime minister’s deal is likely to be defeated by some margin tonight, and the consequence of that is that we are unlikely ever to leave the EU.

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