There are reports in today’s papers that the Attorney-General, Geoffrey Cox, is having secret talks with the DUP to persuade them that there is a way out of the Irish backstop trap after all.
It was the Attorney’s opinion on Tuesday that, despite the EU’s concessions on the backstop, the legal risk of the UK being trapped in the backstop with “no internationally lawful means of exiting” except with the EU’s agreement “remained unchanged”.
His blunt assessment provoked government fury that he had thus failed to provide the Brexiteers with a legal ladder from which they could climb down off their rejectionist tree. Mrs May’s deal was accordingly heavily defeated.
But now, lo and behold! The Attorney is apparently changing his legal advice! The Times reports he has suddenly discovered a whole new international means of exiting the backstop! It says:
“Under a potential deal the government would legislate to give parliament the power to unilaterally pull out of the Irish backstop should MPs determine it had become permanent.
“Mr Cox would also issue supplementary legal advice making clear that if the backstop became permanent then that would constitute a “fundamental change of circumstance” under the Vienna Convention.
“…A senior Brexiteer said that the DUP and many in the ERG could have voted with the government on Tuesday had Mr Cox referenced Article 62 of the convention in his official advice. Asked why he had not, they replied: ‘Incompetence.’
“…Under the plan, Mr Cox would submit additional written legal advice to parliament saying the UK has the power to unilaterally exit the Irish backstop under Article 62 of the Vienna Convention on the Law of Treaties. This says that a state can pull out of a treaty if there is a “fundamental change in the circumstances” to the “basis of consent” that allowed the treaty to be agreed.”
Without any further information with which properly to evaluate this, certain points nevertheless immediately spring to mind.
The UK can’t unilaterally pull out of a treaty unless there is an international law enabling it to do so. Cox reportedly says the Vienna Convention provides precisely that legal justification. But if that is is so, why wasn’t this pointed out not just over this week’s EU concessions but when the Irish backstop first became a sticking point months ago?
Because if it is true that Article 62 of the Vienna Convention provides such an escape clause for the Irish backstop, it must have provided it before those concessions were made. Is Cox really so “incompetent” that he never realised this not just this week but during all those months of arguments and protests and histrionics over the backstop? Is that really plausible?
Moreover, according to this report, that protection by the Vienna Convention is hedged about so that the UK could only pull out if there was “a “fundamental change in the circumstances” to the “basis of consent” that allowed the treaty to be agreed. And who would decide whether those conditions had been met?
In other words, this supposed unilateral escape clause that has so miraculously been discovered would be highly conditional – and so not unilateral at all.
Nevertheless, it seems that this is being used to force the DUP to agree to Mrs May’s deal, which she intends to bring back to parliament yet again for a third vote; and if the DUP does so, Brexiteer opposition to the deal will apparently similarly fade away.
And it’s clear that, appallingly, some Brexiteers at least simply don’t understand what’s at stake here. They seem to think the choice they face is between a bad way of leaving the EU and a good way. The Times story goes on:
“Some Brexiteers said that they would be forced to vote for the deal at the third time of asking. One, Simon Clarke, said: ‘There’s a gun to my head at this point and I think voters will appreciate that increasingly we are getting a very, very limited range of options left if we want to honour the manifesto commitment to leave. So now it is effectively a bad Brexit deal or no Brexit’.”
This is simply wrong. The choice is not between a bad Brexit deal or no Brexit. The choice that this Brexiteer and every other MP will be making is between Remain and Brexit – between Mrs May’s deal and leaving with no deal. For Mrs May’s deal is not Brexit.
Here’s what every faltering Brexiteer MP needs to understand. Even if the Irish backstop were to be removed as a problem, the rest of Mrs May’s deal is still a stinker. It would still leave the UK not only trapped by the EU for the duration of the transition period but also, due to its undertaking to frame the all-important subsequent trade deal in the context of some kind of customs union, potentially trapped by it forever.
Brexiteer MPs now need iron discipline and courage to hold fast to the one and only unequivocal fact: that the only way to deliver Brexit and thus honour the referendum result and the law that parliament itself passed is for the UK to leave with no deal.