Why did he write paragraph 19?

An MP reading the first eighteen paragraphs of Attorney General Geoffrey Cox’s legal advice of Tuesday 12 March might have imagined that the conclusion would be similarly upbeat, emphasising how the three new documents tabled after Theresa May’s voice-losing dash to Strasbourg the previous day were of legal substance and taken together ensured that for all practical purposes the UK could not be trapped in an Irish backstop. Instead, after an ominous ‘however’ to start paragraph 19, Cox veered the other way, including the deadly five words ‘the legal risk remains unchanged’ (not an accurate characterisation of the opinion as a whole).
There were probably reinforcing personal, political and institutional reasons why Cox withheld his blessing. The perceived independence of the Attorney-General’s Office and the derision he was attracting in Brussels were in the mix. Perhaps he was even holding it back to release it in a final gesture, an escape route for the DUP and ERG. But from all reports, all he can now do is to elide his words ‘while the fundamental circumstances remain the same’. To suggest that international law conventions on fundamental and unforeseeable change might ever give the UK unilateral political control over the backstop is surely bad-faith negotiating with the EU27. And it seems that the Strasbourg package (including a helpful failure to counter the UK Unilateral Declaration with one of their own) is the last word from them: concessions from Brussels can no longer propel a positive meaningful vote.
Even within her disastrous Tuesday, May made some progress in MV2 (lost 242-391). Forty Conservative rebels, a third of the total, were won back, including the important names of Graham Brady and David Davis. But, as rugby and American football coaches know, to make a winning score in attritional situations you need to be a certain distance up the field in relation to time on the clock. The media, responding to No 10 briefings, have always been too optimistic about May’s vote performance on the deal. The likelihood is that after MV3 May will be where she hoped to be after an MV1 in December. After a 312-308 passage of what became the Cooper amendment, the no-deal motion passed on Wednesday 13 March repeats the same words agreed by the House on 29 January. It is merely declaratory and in the absence of an alternative deal is even helpful to the government’s line. Accidental no-deal has not gone from the scene.
The votes on Thursday 14 March were all won by the government, the final one on seeking an extension 413-202 on a Conservative free vote that supplied only 112 MPs against Labour’s 236.  Brexit Secretary Stephen Barclay wound up and commended the motion to the House before voting against it. Time will judge the significance of the earlier 314-312 defeat of the Benn/Letwin amendment that sought to take control of business away from the government on 20 March in order to propose a cross-party timetable for future Brexit discussion. The House of Commons has no experience of working like this and it may have proved to be a rocky path for its backbench proponents. At least May has got back the day before the European Council to use for MV3 if she wishes, and she is committed by her own text to seeking an extension.  She also had the satisfaction of seeing failings in Labour’s normally impressive whipping operation, which had shipped only three votes the government’s way in the main votes on the previous two days. Over forty Labour MPs veered off the abstention line on the amendment for a second referendum, 25 voting against it. 
All will now focus on the interplay between politics in Westminster and Brussels.  The government was set to seek a third meaningful vote on 19 or 20 March, but weekend comments by Philip Hammond and Boris Johnson suggest it might not take place for fear of a little-change outcome. May’s motion suggested that in this case a long extension would be requested, but this would be harder to secure from the EU27 than a short one.  May seems set to go to the European Council on 21-22 March without being able to propose any of the three legal routes open to the UK (leave with or without a deal under Article 50, or rescind the withdrawal notice). What she may be offered is in the gift of the EU27. As to what that might be, a good starting-point might be Emanuel Macron’s calculation of what Brexit situation would best assist his European Parliament election campaign as he struggles after the gilets jaunes trauma to keep afloat his new party under eurosceptic challenges from left and right, and seeks to lead europhile forces throughout the Union.  

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Richard Parry's picture
post by Richard Parry
University of Edinburgh
18th March 2019

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