Editorial Comment
May’s capitulation to Remainer Cabinet ministers removed any motivation for the EU to offer legal concessions
MPS cannot renege on their undertakings to implement the decision of the referendum
What now? The emphatic defeat of Theresa May’s Brexit deal for the second time in the House of Commons, with just 16 days to go before the UK’S departure from the European Union, has ushered in even greater uncertainty and doubt. MPS will now decide whether to stick with the March 29 date that the overwhelming majority voted for when they triggered Article 50 nearly two years ago and subsequently confirmed in the EU Withdrawal Act.
That remains the default position under the law and, in the absence of a deal, we should leave without one. Mrs May, after all, has repeated over and again that no deal is better than a bad deal. Hers is a bad deal and has been judged to be so twice by the House of Commons.
Moreover, preparations for no-deal have been well advanced in Whitehall for months, but the Government has chosen not to advertise the fact for fear of turning it into a reality. Now it must. There will be disruption from a no-deal Brexit but not the catastrophe that has been predicted. So we must leave as planned on March 29; but this will not happen if MPS vote today against leaving without a deal and then tomorrow instruct the Government to seek an extension to the Article 50 process. Mrs May has confirmed there will be a free vote today.
All this is the consequence of her capitulation to Remainer Cabinet ministers who threatened to resign unless the Commons was given the chance to take no-deal out of the Brexit equation. In doing so, she removed any motivation for the EU to offer the legal concessions that might have persuaded Brexiteers to back the deal. Why would they give way when the threat of a disruptive Brexit had in all probability gone? Mrs May had hoped that, by confronting Brexiteers with the prospect of the UK staying in the EU, they would fall into line.
Additionally, she calculated that they would be persuaded by changes to the Withdrawal Agreement that met their objections about the Northern Ireland protocol, or backstop. Last Monday, hopes were high in Government that a significant breakthrough was possible in fresh talks in Brussels. Yet the EU offered nothing new beyond additional reassurances that the backstop would not be a trap from which there was no unilateral escape.
Mrs May had placed her hopes in Geoffrey Cox QC, the Attorney General, negotiating a legally binding protocol to the treaty enabling him to change the opinion he gave in January that the backstop could be permanent.
Given the immense political pressure he was under, it is to Mr Cox’s great credit that he declined to do so. His assessment that the outpouring of legalese from Strasbourg had not fundamentally changed the implications of the backstop sealed the fate of the deal hours before the vote. Mr Cox recently said that he values his professional reputation as a lawyer far more than his reputation as a politician. He was never going to sacrifice the former to the latter.
Mr Cox did, however, make a perfectly valid point that, while the risk of a backstop trap had not been eliminated, it was minimal and he invited MPS to make a political, not a legal judgment. He believed the EU could be expected to negotiate a future trade deal in good faith, thereby obviating the need to keep Northern Ireland or the whole of the UK in a customs union to prevent a hard border in Ireland.
However, this was not enough for the Democratic Unionists or Brexit-supporting Tories who feared for the integrity of the UK and considered the agreement as it stands to be a threat to sovereignty. Even with the new assurances, it remained the case that the Irish backstop could not fall away unless it was “jointly” agreed by the UK and the EU that the mutual commitment to avoid a hard border had been met. It did not deliver the fixed time-limit or unilateral exit mechanism that Brexiteers wanted and they voted with the Opposition, inflicting another heavy defeat on Mrs May.
Her future in No 10 must now be in question, although last night she showed no sign of doing anything other than ploughing on. Thought must also be given to the possibility of a general election if the political impasse continues for much longer. If the problem lies with the composition of Parliament then a new Parliament is needed.
There are now essentially two options: leave on March 29, as we are legally required to do, deal or no deal; or stay in the EU, either temporarily or, as some MPS clearly wish, for good. That would not only be a national humiliation but a betrayal of the referendum vote. Parliament gave the country the choice over whether to stay in the EU and MPS cannot in all conscience renege on their undertakings to implement the decision of the referendum. The consequences of doing so would be felt for years to come.