Step forward, Mr Johnson?

With splits in the ERG, writes Eddie Ford, does Theresa May now have a chance of scraping her deal through the Commons? It seems unlikely

Tick-tock, tick-tock. With exit day only weeks away, attorney general Sir Geoffrey Cox and Brexit secretary Stephen Barclay went back to Brussels on March 5 in yet another futile bid to secure “legally-binding changes” to the Irish backstop.

The day before he left, Cox had to take to Twitter to deny newspaper reports saying he had abandoned efforts to introduce a time limit or ‘unilateral exit mechanism’ (the so-called “freedom clauses”). While admitting that some of the reporting was “accurate”, he claimed “much more of it isn’t” - adding that “complex and detailed negotiations cannot be conducted in public”. On March 6 he told Sky News that the talks with the European Union on the Northern Ireland backstop were “robust” and “we are now facing the real discussions” - strongly implying that there had been no breakthrough. This was later confirmed by a European Commission spokesperson, who said the discussions had been “difficult” and no solution has been “identified”.

Reuters and other media outlets report that the attorney general has shifted his focus to securing an enhanced “arbitration mechanism” that allows Britain or the EU to provide formal notice that the backstop should come to an end. That would in theory mean that the UK is not trapped indefinitely in the arrangement - a Hotel California Brexit, where “you can check out, but you can never leave”. However, quite predictably, EU officials are fiercely resistant to the idea of any “independent” arbitration process that is outside the jurisdiction of the European Court of Justice.

Cox was due last week to give a statement to parliament on the matter, but this was postponed - indicating that negotiations are not going well. Barring some unforeseen development (or secret talks that we are currently unaware of), the most Theresa May will get out of the EU is a ‘reassuring’ letter or “interpretive” document, full of legalistic-sounding verbiage, attached to the withdrawal agreement, which essentially would mean nothing. The backstop will remain.

Making life even more difficult for the prime minister, Sammy Wilson, the Democratic Unionist Party’s Brexit spokesman, has reaffirmed that his party will only support her ‘revised’ Brexit deal if the withdrawal agreement itself is amended to make the backstop time-limited, or allow the UK to withdraw unilaterally. Anything else, he stated, would leave the Six Counties in “exactly the same position” as the current proposed withdrawal deal does - where external bodies can call the shots. Any exit from the backstop, in Wilson’s view, had to be “a decision of this parliament, and this government, not some independent panel of judges”.


In a desperate attempt at spin, Jeremy Hunt, the foreign secretary, told the BBC’s Today programme that signals from the EU were “reasonably positive”, but there was “still a lot of work to do” - which most people interpret as meaning the talks have got nowhere. Perhaps giving the game away, Hunt also said the British government was prepared to be “flexible” about the “freedom clauses”, which could mean settling instead for a “fair” arbitration mechanism. Or maybe not. More backtracking, in other words.

Everything still indicates, minutes before high noon, that Theresa May is sticking robotically - keep your eyes down - to the ‘strategy’ of running the clock down and hoping that MPs blink like rabbits before the oncoming headlights, spooked by increasing warnings of disinvestment and closures from BMW, Honda, Toyota, Bentley, PSA, Jaguar Land Rover, Ford, Airbus … It is widely expected, therefore - contrary to earlier rumours - that the prime minister will leave it to Monday next week (March 11) to unveil her new “legal assurances” to the House of Commons, just one day before the second and possibly very last ‘meaningful vote’ on her deal. But this “breakneck” timetable, according to Tom Newton Dunn in The Sun, “risks infuriating” the European Research Group - warning May that any move to “bounce” MPs into agreeing her Brexit deal is “likely to backfire spectacularly” (March 4).

Flexing its muscles, the ERG has convened a “star chamber” or “cash council” of legally-minded Brexiteers, seven of them MPs - including veteran Eurosceptic and ringleader Bill Cash, the DUP’s Nigel Dodds, former Brexit secretary Dominic Raab, former Department for Exiting the European Union minister David Jones, and Martin Howe QC, who chairs the pro-‘leave’ group, Lawyers for Britain. They are demanding “all of the relevant documents in good time to consider them properly” ahead of the vote - which in the opinion of Cash needs to be at least 48 hours. That seems unlikely, given May’s panic strategy. Not boding well for the prime minister, Jones told The Sunday Telegraph that devices like a “fair” arbitration process were “usually insufficiently watertight” and hence it was “dubious” that it would “pass muster” for his group - they effectively want a “treaty-level change” that alters the attorney general’s prior legal advice that the backstop could “endure indefinitely”, and also a “clear exit route”. Theresa May has a tough, if not near impossible, job on her hands.

Having said that, cracks are appearing within the ERG. After steadfastly insisting that the backstop must be removed in its entirety, Jacob Rees-Mogg, de facto leader of the organisation, signalled on February 26 at an event for the rightwing Spectator magazine that he too could be “flexible” - perhaps there is some wriggle room after all. An appendix or codicil to the withdrawal agreement, rather than something specified in the treaty itself, would be acceptable, so long as it has “equal legal standing” - in that way, he argued, there would be no need to reopen or rewrite the agreement. Whether that would be acceptable to the EU is a different matter, however, especially as Rees-Mogg later told the BBC that there needs to be a “clear date” specifying when the backstop ends - which should be a “short date, not a long date”. The EU would almost certainly regard that as unicorn thinking - a backstop that is not really a backstop or fail-safe insurance policy. Back to square one, with the prime minister facing another humiliating defeat in the Commons.


Yet the game might not be entirely over for May. The ERG has made an offer - generous or not - that, if she promises to quit after the May 2 local elections, they would vote for her deal, allowing her to make her March 29 deadline. With the ERG on board and a clutch of Labour rebels, this is not an entirely impossible scenario - especially when you consider that May has already pledged to stand down before the next scheduled general election.

But, if she went along with this, there would be a Tory leadership contest over the summer, with the ERG campaigning for its champion, Boris Johnson - the new leader and prime minister would be crowned at the Tory conference in September. There is very little doubt that if Johnson got his name on the ballot paper - which is not guaranteed, but a strong possibility - he would win any such contest, given that the Tory membership has the final say. That membership is, of course, way to the right of the parliamentary party and overwhelmingly pro-Brexit. We should not forget that after March 29 we are only in the transition period, as the withdrawal agreement (divorce) was supposed to be the easy bit - remember? - before things get even more difficult (even if Liam Fox did stupidly say that the post-Brexit free trade deal with the EU should be the “easiest in human history”).

In other words, the deal proper has not even begun yet - it could take many years to arrive at an actual agreement with the EU, if previous trade negotiations are anything to go by. The likes of the ERG want this deal, the true prize, to be negotiated by real Brexiteers - not treacherous advocates of Brino (‘Brexit in name only’). Please step forward, Mr Johnson. It is a moot point, of course, whether ERG backing would provide the numbers necessary to secure parliamentary support. For every gesture to the right, you lose out on the other side - alienating soft Brexiteers and pro-European MPs. Acceptance of the ERG offer has to be a very carefully calculated move, otherwise you could find yourself riding the tiger’s back.

But at least it provides Theresa May with a chance to get her deal through parliament, albeit an outside one, and also gives her a more dignified departure personally - rather than an exit pursued by an angry ERG bear. She can also take a measure of comfort from the fact that in recent days several prominent ‘leave’ supporters - including Sir Graham Brady, the chair of the 1922 Committee, and Nigel Evans, a former deputy speaker - have swung behind May’s deal, fearing the alternative would be a no-deal Brexit, a lengthy delay or a second referendum. Getting the support of Brady is particularly significant, as only weeks ago he successfully championed a Commons amendment that instructed May to return to Brussels to negotiate the complete removal of the backstop from the withdrawal agreement and find “alternative arrangements” to solve the Irish border issue.

Brady told The Observer that his intention had always been to “ensure that the backstop could not assume a permanent status, trapping the UK in the EU customs union” - just so long as Geoffrey Cox is able to “assure” parliament that he has some sort of legally binding “guarantee” that the backstop can only be temporary (March 3). May’s decision, or concession, the other week to give MPs a vote on delaying Brexit if her deal is rejected again - coupled with Labour coming out more clearly in support of a second referendum - have obviously been key factors in persuading many Tories to consider switching their vote to support the prime minister. Whilst May still faces a massive uphill struggle - putting it mildly - to win over the most hardline Brexiteers and the 10 DUP MPs, it does seem that a relatively large number of those who helped inflict the 230-vote defeat on her in January are now looking for ways to back down without completely losing face or outraging their constituents and local party members.


Doing his bit to pile on the pressure and give the horses a good scaring, Tory whip Julian Smith has warned cabinet ministers that, if MPs reject Theresa May’s deal a second time, then the most likely outcome is that a much softer Brexit - possibly based upon a permanent customs union - would emerge as the cross-party majority view in parliament through a series of “indicative votes” after MPs vote to take a ‘no deal’ totally off the table and extend article 50. The Brexit dream could be over - so do the sensible thing and back Theresa May’s deal, when it is presented to parliament. Will the DUP and ERG buckle at the last minute?

One thing you can say for sure is that, the nearer we get to exit day, the more we will see splits and strange coalitions emerging - the Independent Group being one such ugly manifestation. It is now almost universally accepted that we will see an extension to article 50, the amazing vote for the Yvette Cooper motion proving that - the first time in January it lost by 23 votes, but on the second attempt there were only 20 against, showing that the ERG itself is seriously split over that issue (it appears to have around 60 supporters).

Now the real question - as far as the ERG is concerned - is whether it will be a politically acceptable ‘technical’ or limited extension, just to provide the necessary time to get all the relevant legislation through parliament; or an unacceptable delay that could lead to a second referendum and/or general election (or some other devious way of cancelling Brexit altogether). Of course, all this is dependent on the EU agreeing to an extension, but it seems unlikely it would turn down any request. However, will EU negotiators demand a quid pro quo like financial compensation, further budget contributions or giving up Gibraltar?

But just think of the repercussions if Theresa May goes and Boris Johnson becomes the new leader. A general election is called, to be fought between a newly united Tory Party and the unpatriotic Labour traitors who want to stop or reverse Brexit - with the Independent Group and Nigel Farage’s Brexit Party added to the fractious mix. Then things could get really ugly.