Brexit: Tory MPs should risk long delay rather than back May's 'poisonous' deal, expert advises

Verdict from QC advising hardline Conservatives on Irish backstop would sink prime minister's deal in next week's 'meaningful vote' - if followed

Rob Merrick
Deputy Political Editor
Monday 04 March 2019 20:14
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Pro-Brexit Tories should risk a long delay to leaving the EU rather than bow to pressure to back Theresa May’s “poisonous” deal, says the QC advising them.

Conservative MPs who sank the agreement in January have been told to stand firm in next week’s repeat “meaningful vote” – even if the price is an extension of the Article 50 exit notice until the end of 2020.

Significantly, the advice comes from Martin Howe, a barrister specialising in EU law appointed by anti-EU Tories to analyse the legal implications of any changes to the Irish backstop secured by the prime minister.

If the advice is followed, it would ensure a second defeat for the deal, probably next Tuesday – and pave the way for MPs to demand an Article 50 extension later next week.

Until now, the suspicion has been that Brexiteer Tories will be cowed into backing a deal they detest for fear of a long delay to departure that would put the entire project at risk.

But, in an article for the Conservative Home website, Mr Howe argued it was worth even the gamble that delay would allow opponents to “reverse Brexit altogether”.

Crucially, extending Article 50 until January 2021 – a date mooted in Brussels – would prevent the UK having to adopt the backstop and becoming trapped, “unlike the deal,” he said.

It would also cut the estimated £39bn ‘divorce bill’ and avoid “indefinite ECJ [European Court of Justice] jurisdiction”, while retaining the UK’s “vote and voice within the EU institutions”.

“The problem with May’s deal is that it poisons Brexit by closing off the freedom of action which is the whole point of Brexit, and drains away its advantages,” Mr Howe wrote.

“If Brexit supporters are complicit in miring the UK for a decade or a generation in such a terrible vassal arrangement with the EU, inevitably calls will grow for us to re-join the EU in order at least to get back a vote on the rules which we have to follow.

“On a positive note, even if the Remainers were to get the long extension which they crave, it does not mean that the support will be there either in parliament or still less in the country to hold a second referendum or to reverse Brexit.

“The Labour party in particular would find it very difficult if it alienates its Leave-supporting voters in the many marginal seats where they are plentiful.”

Mr Howe predicted that the prime minister’s threat of her deal or a long delay – foreshadowed in a leak of her Brexit adviser’s private comments last month – would backfire.

“The ‘threat’ is manifestly more advantageous in every way than the thing the threatener wants the threatened to do (vote for the May deal),” he wrote.

The article came after Downing Street appeared to water down Ms May’s demands from the EU, refusing to say the UK is still fighting for a “time limit” to the backstop, or an “exit clause”.

The prime minister is pinning her hopes of passing the deal on Geoffrey Cox, the attorney general, changing his legal advice that the UK is in danger of being trapped in the backstop indefinitely.

However, the verdict will be scrutinised by a ‘star chamber’ of Mr Howe, six members of the hardline European Research Group, and a leading Democratic Unionist Party MP, Nigel Dodds.

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