Britain could be stuck in the Irish backstop forever if trade talks with the EU break down, the Prime Minister was warned in secret legal advice.
The advice drawn up for the Cabinet was finally published today after MPs voted to find the Government in contempt of Parliament for the first time yesterday – one of three defeats last night in the worst day in the Commons for a PM in 40 years.
Both Leave and Remain MPs demanded the secret advice amid suspicion Attorney General Geoffrey Cox gave a bleaker assessment of how the deal works privately to Cabinet than he revealed publicly on Monday.
The new version paints a much starker and unspun outline of the legal risks of the backstop but is not materially different to what Mr Cox had said earlier.
Mr Cox’s advice said the backstop is ‘intended to subsist even when negotiations have broken down’ – meaning it has been designed to last forever if talks fail.
DUP leader Nigel Dodds said the advice was ‘devastating’ and a clear border down the Irish Sea – something he said Mrs May had promised would never happen.
Earlier, MPs were warned by Commons leader Andrea Leadsom they would live to ‘regret’ forcing the Government to publish the letter.
The latest blow to Mrs May comes after yesterday’s historic triple defeat in the Commons lobbies.
The Prime Minister face MPs again today as she returned to the Despatch Box for PMQs. In the worst defeat, 26 Tory rebels sided with Labour to push through an amendment that would let MPs step in if her deal is defeated next Tuesday.
The five-day Brexit deal debate will continue this afternoon after it adjourned at just after 1am this morning.
Commons Leader Andrea Leadsom confirmed it would be published around 11.30am today with ‘regret’ after Theresa May (pictured in Downing Street today) suffered an historic triple defeat in the Commons.
The document, drawn up by Attorney General Geoffrey Cox (pictured in the Commons yesterday) for senior ministers, said the measure is ‘intended to subsist even when negotiations have broken down’.
In his letter, Mr Cox said ‘despite statements in the Protocol it is not intended to be permanent and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the protocol would endure indefinitely until a superseding agreement took its place’.
This suggests the backstop has been drafted to last even if talks break down naturally, rather than if one side deliberately stalls them.
The Attorney said the deal ‘does not provide for a mechanism that is likely to enable the UK lawfully to exit the UK wide customs union without a subsequent agreement’.
This section makes clear it is impossible for Britain to escape the backstop unilaterally and a political deal with Brussels was the only way out
Mr Cox said ‘this remains the case even if parties are still negotiating many years later and even if the parties have believe that talks have clearly broken down and there is no prospect of a future relationship agreement’.
The letter says goods moving between Britain and Northern Ireland must be subject to a ‘declaration process’. It said Britain would be ‘essentially treated as a third country’ by Northern Ireland.
In his conclusion, Mr Cox advises the Prime Minister there is a ‘legal risk the United Kingdom might become subject to protracted and repeated rounds of negotiations’ because it was giving up the ability to walk away without escaping the backstop.
He said: ‘This risk must be weighed against the political and economic imperative on both sides to reach an agreement that constitutes a politically stable and permanent basis for their future relationship.
‘This is a political decision for the Government.’
The secret legal advice was contained in a six page note from the Attorney General Geoffrey Cox to the Prime Minister on November 13 titled the ‘legal effect of the protocol on Ireland/Northern Ireland’
The letter says goods moving between Britain and Northern Ireland must be subject to a ‘declaration process’. It said Britain would be ‘essentially treated as a third country’ by Northern Ireland – something which has enraged unionists
In the letter, Mr Cox said the ‘protocol is intended to subsist’ – meaning last forever if negotiations on a final trade deal break down
Mr Cox told the Prime Minister the deal offered no legal way out for the UK short of a political deal with the European Union
Mr Cox said the legal risks of the deal must be ‘weighed against the political and economic imperative on both sides’
Following the letter’s publications, Mr Dodds said the advice was ‘devastating’ to the Prime Minister’s claims about the deal.
He said: ‘This advice concisely sets out the stark reality of the operation of the backstop.
‘Its publication demonstrates how the Prime Minister has failed to abide by the commitments she gave in that the United Kingdom as a whole would leave the European Union and that she would ensure there would be no customs or regulatory divergence within the United Kingdom.
‘This backstop is totally unacceptable to Unionists throughout the United Kingdom and it must be defeated and arrangements renegotiated that uphold the commitments which the Prime Minister and her government has in the House of Commons.’
Earlier today, Mrs Leadsom told the Today programme the Government was furious at being forced to publish.
She said: ‘It was incredibly disappointing that the House of Commons decided to vote in effect to overturn what has been decades, if not centuries, of conventions whereby the law officer’s advice to Cabinet and to ministers are not even acknowledged, let alone published.
‘The Attorney General had come to the House for two-and-a-half hours, which is also unprecedented in these many years, to answer questions to give his very best legal advice.
‘He published a 48-page document that outlined all of the legal impact of the Withdrawal Agreement, so the vote yesterday of the House to require the specific legal advice to Cabinet we will comply with, but not without some regret.’
Mrs Leadsom continued: ‘Going forward, not only will Government ministers be very careful about what they ask law officers to give advice on, but law officers themselves will be very reluctant to give any advice to Government that they might then see published on the front pages of the newspapers.
‘So it’s the principle of the thing.
‘And frankly I think any parliamentarian who wants at some point in the future to be in Government is going to live to regret their vote last night.’
‘And frankly I think any parliamentarian who wants at some point in the future to be in Government is going to live to regret their vote last night.’
Mrs Leadsom said the impact of Mr Grieve’s amendment could make a no deal Brexit both more and less likely, depending on how MPs react.
She said MPs should vote for Mrs May’s deal because while it was not perfect was the ‘best combination we are going to get’.
Admitting she was unhappy with the Irish border backstop, she insisted it was also ‘not in the EU’s interest’ for Britain to be locked into it indefinitely.’
Former Brexit secretary Dominic Raab said it would be ‘inconceivable’ to stop the UK leaving the EU, saying it would be wrong to ‘pull a handbrake up on Brexit’.
Following the letter’s publications, DUP Westminster leader Nigel Dodds said the advice was ‘devastating’ to the Prime Minister’s claims about the deal
He told BBC Radio 4’s Today programme the deal is ‘lousy’, and said: ‘If the deal is voted down on Tuesday I think what will matter most of all will not be what Parliament says in a motion – it will need legislation to stop Brexit – what will matter is the will and resolve in Number 10 Downing Street.’
Mrs May’s ailing hopes of winning the vote on Tuesday took another blow today as former chief whip Mark Harper joined the ranks of Tory MPs pledged to vote No.
Mr Harper demanded the PM ‘listen to Conservative colleagues’ and tell Brussels to strip the Irish border backstop out of the deal.
Last night, Mrs May tried to keep her plan alive with a rousing speech to the Commons, in which she warned ‘Brexit could be stopped’ entirely if it is voted down on Tuesday.
She acknowledged criticism of her ‘compromise’ deal, but said: ‘We should not let the search for the perfect Brexit prevent a good Brexit that delivers for the British people.
‘And we should not contemplate a course that fails to respect the result of the referendum, because it would decimate the trust of millions of people in our politics for a generation.’
Dominic Grieve, the former attorney general, led the rebellion which could effectively takes a no-deal exit off the table.
He claimed it could lead to a second referendum, adding: ‘MPs are tonight starting the process of taking back control.’
Downing Street must now hope that the threat of Parliament blocking a no-deal Brexit convinces some Eurosceptic opponents of her deal to change their minds before the meaningful vote.
However, a number of high profile, and previously loyal, Tory MPs rebelled during the series of defeats last night – including Michael Fallon and Damian Green.
And in a clear indication that the Prime Minister’s ‘confidence and supply’ deal with the DUP is fractured beyond repair, the Northern Irish party warned her it did not fear another election.
Downing Street had hoped the threat of a general election would bring the DUP to heel, because it could bring the pro-Nationalist Jeremy Corbyn to power.
But the party voted against the Government last night, with Nigel Dodds, the party’s Westminster leader, telling Mrs May his party was ready to spark another poll. He added: ‘I’m certain we will be returned in greater numbers.’
In other developments in yesterday’s day of drama:
- The PM promised to listen to Tory MPs worried about the so-called Irish backstop, saying she would ‘consider how we can go further’ to reassure it will not leave the UK in a customs union in the long term;
- Mrs May also offered to give MPs a ‘more formal role’ in steering the trade talks with the EU after the UK has left next year;
- Tory shop steward Sir Graham Brady said he accepted the need for compromise, but urged Mrs May ‘in the strongest possible terms’ to identify a clear route out of the backstop;
- Boris Johnson was heckled by moderate Tories as he attacked Mrs May’s plan and urged MPs to vote against it next week;
- Eurosceptic Jacob Rees-Mogg insisted next week’s crunch vote would be close and dismissed ‘ridiculously inflated’ claims about the scale of the rebellion;
- A senior Toyota executive warned a no-deal Brexit could result in ‘stop-start production’ for weeks or months at its UK plant;
- Bank of England governor Mark Carney warned such a course could result in food prices rising by 10 per cent;
- The European Court of Justice’s senior lawyer said Article 50, which started the Brexit process, could be revoked unilaterally by the UK;
- The BBC dropped plans for a televised Brexit showdown involving Mrs May and Mr Corbyn on Sunday night;
- Brexiteer Cabinet minister Chris Grayling publicly backed Mrs May’s deal for the first time.
In her speech last night the PM admitted that both Remainers and Brexiteers have been left dissatisfied by parts of her deal.
But she said the ‘hard truth’ is that the compromise she has thrashed out with Brussels is the only deal which delivers on the historic vote and protects jobs.
She said: ‘I know there are some in this House and in the country who would prefer a closer relationship with the European Union than the one I’m proposing, indeed who would prefer the relationship that we currently have and want another referendum.
‘Although I profoundly disagree, they are arguing for what they believe is right for our country and I respect that.
‘But the hard truth is that we will not settle this issue and bring our country together that way and I ask them to think what it would say to the 52 per cent who came out to vote Leave, in many cases for the first time in decades, if their decision were ignored.’
The PM added: ‘There are others in this House who would prefer a more distant relationship than the one I’m proposing and although I don’t agree, I know they’re also arguing for what they think is best for our future and I respect that too.
‘But the hard truth is also that we will not settle this issue and bring our country together if in delivering Brexit we do not protect the trade and security cooperation on which so many jobs and lives depend, completely ignoring the views of the 48 per cent.
Mrs May said the ‘only solution that will endure’ is one that addresses the concerns of both sides of the debate.
But she faced a fiery Commons session as leading Brexiteers lashed her plan, while the DUP – who are propping the Tories up in No10 – said they would be happy to have another general election.
Boris Johnson, who has become the PM’s fiercest critic since quitting as Foreign Secretary over her Brexit plan, said the deal is a failure.
He told the Commons: ‘I can’t believe there is a single member of this House who sincerely believes that this is a good deal for the UK.
‘You can tell that the government’s hearts are not in it
‘You can tell that they know it is a disaster because after two and a half years this deal has done an amazing thing it has brought us together – remainers and leavers in the belief that it is a national humiliation that makes a mockery of Brexit.
‘There will be no proper free trade deals. We will not take back control of our laws and for the government to continue to suggest otherwise is to do violence to the normal meaning of words.
‘We will give up £39bn for nothing. We will not really be taking back control of our borders.’
While Nigel Dodds, the DUP’s Westminster leader has said he would be ‘happy’ to have another general election to prove the party has support in Northern Ireland for blocking the PM’s Brexit deal.
He said: ‘We will happily go to the electorate and put our views to the people if needs be, and I’m quite certain we would be returned in greater numbers than today.’
A slew of MPs had condemned ministers for refusing to release the full Brexit deal legal advice in a fiery Commons showdown today.
It had pitted Mrs May’s authority and support against the accumulated strength of her opposition – which spanned both Brexiteers and Remainers.
But admitting defeat and announcing the legal advice will be published tomorrow, Mrs Leadsom said: ‘We have tested the opinion of the House twice on this very serious subject…
‘We will publish the final and full advice provided by the Attorney General to Cabinet.’
How Parliament can take back control: After Tory rebels defeated the Government this is how MPs can try and shape Brexit if May’s deal is defeated
Tory rebels took a major step toward giving Parliament control over Brexit by inflicting a huge defeat on the Prime Minister last night.
Remainer Dominic Grieve was joined by 25 Tory rebels to re-write the rules on what happens if and when Theresa May’s deal is defeated in the Commons next week.
It means the Commons now has the chance to vote for alternatives – including possible a second referendum, a new election or extending the Article 50 process.
Remainer Dominic Grieve (pictured yesterday in the Commons) was joined by 25 Tory rebels to re-write the rules on what happens if and when Theresa May’s deal is defeated in the Commons next week
What happened last night?
Tory Remain rebel Dominic Grieve defeated the Government to change what happens next if Theresa May’s Brexit deal is defeated in the Commons next week.
His amendment was carried by 321 to 299 after 26 Conservative MPs defied orders to vote in favour of it.
What does Dominic Grieve’s amendment do?
The amendment changes the rules on what happens next if Mrs May’s Brexit deal is defeated next Tuesday night.
By law, following a defeat the Government must make a statement on what it will do and then holding a Commons vote on it. Before last night, this would have been a simple motion noting the statement that could not be amended.
Now MPs will be able to try and re-write it with amendments.
What can the new amendments be about?
Amendments to the motion could try to give instructions to the Government on what to do next instead of simply accepting or rejecting the plan shown to them.
This could be taking measures to avoid no deal, backing a second referendum, calling a general election or setting out new negotiating red lines for further talks in Brussels.
Brexit supporters could also use it to try and tell the Government to pursue no deal.
To have any impact at all, the amendments will have to win a vote of MPs.
When will the new amendments be debated and voted on?
The law says the Government must produce its next steps motion within 21 days of a defeat on its deal. This is over the Christmas recess so it is likely to be debated sooner than that, sometime between December 12 and the last day of term on December 20.
Speaker John Bercow will choose which amendments are voted on at the end of the debate.
Tory rebels took a major step toward giving Parliament control over Brexit by inflicting a huge defeat on the Prime Minister (pictured yesterday in Downing Street) last night
What will it mean if any amendments pass?
The amendments will not have any legal force but a majority vote by MPs on what to do will have a lot of political power.
Even if the vote is not in favour of current Government policy, Ministers could use it to change course – scrapping the current red lines in the negotiation to adopt a Norway-style Brexit or passing new laws for a second referendum.
What do Brexit supporters think about it?
Brexiteer MPs insist because the amendments are not legally binding, they officially change nothing. They say if Mrs May’s deal is defeated, Britain is on course to leave without a deal under current laws.
This is true, legally speaking, but ignores the political power of Parliament taking control with a vote in favour of a new course of action.