The dangers of a deal with no way out

Although the Government still declines to publish the full legal advice to the Cabinet on the EU Withdrawal Agreement, it has divulged enough for the implications to be clear. In a rare appearance at the Despatch Box, the Attorney-general, Geoffrey Cox, candidly confirmed that the deal with the EU “does not contain any provision on its termination”. He added: “In the absence of such a provision, it is not possible under international law for a party to withdraw from the Agreement unilaterally.”

This is the nub of the complaint of many on both sides of the Brexit divide. Even the EU has a mechanism – Article 50 – for leaving. However, the arrangement that Theresa May is inviting Parliament to agree to next Tuesday will have no unilateral exit clause. This is especially problematic in relation to the so-called backstop intended to prevent a hard border in Ireland. Mr Cox acknowledged that we could be stuck in it for good if a trade deal could not be agreed, but he doubted that would be the case.

He said a free trade agreement will be struck and the Northern Ireland protocol “insurance policy” will not be required. But this cannot be known for certain; and many MPS consider the risk is too great, so much so that Mrs May is struggling to avoid a significant defeat in the Commons next week. The Prime Minister could do worse than take a leaf out of Mr Cox’s book and be honest with the House about the ramifications of her deal.

In stentorian tones of the sort rarely heard in Parliament any longer, he was frank in spelling out the legal constraints inherent in the agreement. In his Telegraph column on Monday, Boris Johnson called it “a great steel trap that is about to clamp its jaws around our hind limbs and prevent our escape”. But Mr Cox said that with good will on both sides this would not happen: neither the UK nor the EU wished the backstop to form the basis of their future relationship; without it, however, there would be no withdrawal agreement.

Mr Cox said he would have preferred to have seen the EU agree a unilateral right of termination in the event of talks about the future relationship breaking down irretrievably. What had been reached was a “reasonable compromise” and MPS needed to weigh it up against the alternatives. It was a calculated risk and one the Attorney General invited MPS to take next week. But is it too late to convince them?