Iain Dale: The Prime Minister put in a superb Parliamentary performance yesterday

Plus: But her deal’s so bad I’d rather Remain. Robbins is the real Rasputin, not Timothy. Would I really vote Tory tomorrow? And: Carry on Cocks and Dicks.

Iain Dale is an LBC presenter, a commentator with CNN and the author/editor of over 30 books.

I’m not angry: I’m just overwhelmed by a feeling of sadness that it’s come to this. It didn’t have to be this way.

I’m convinced that if Nick Timothy was still Theresa May’s chief adviser, things would have been very different. Instead, Olly Robbins replaced him in the Prime ministerial affections game, and we know the result.

Oops, how every dare I criticise a civil servant! The very thought. Well, I’m sorry: this Rasputin-like figure has more of a hold over the Prime Minister than Alan Walters had over Mrs Thatcher, or Peter Mandelson over Tony Blair.

She’s believed his every utterance or piece of advice over Brexit strategy even though, time and time again, he’s proved to have been disastrously wrong. On each occasion, it has resulted in yet another humiliating capitulation. When the rue history of this period is written, Robbins will not come out of it well.

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On Wednesday, I wrote on my blog explaining why I thought the Brexit deal hatched between Theresa May and the EU was just about the worst result possible.

Indeed, so bad is it that if I had to choose between remaining in the EU and voting for this abortion of a deal, I would vote to Remain. I don’t resile from my Brexit vote, or the firm belief that we are better off out – but the trouble is, we won’t be out if this deal gets through.

For the avoidance of doubt, let me put on the record once again that no deal is preferable to a bad deal, and that this is the very worst deal. No deal is not an ideal option either, but at least we’d be master of our own destinies.

Yes, I accept that there would be some short-term issues to get over – but get over them we undoubtedly would. Instead May thinks that we should accept European rules with no say in their drafting. Any fool can see the dangers in that, and it is the direct opposite of ‘taking back control’.

So when the deal comes to the Commons, I hope it is decisively rejected. And I say that in the full knowledge that the Prime Minister would undoubtedly have to resign immediately. There’s no way she could survive it.

Having said that, she does have a remarkable ability to endure the impossible. But this time I think she’s bitten off too much. It takes a special talent to unite Andrew Adonis and Jacob Rees-Mogg, but by God she’s achieved it. It will be something she will live to regret, I suspect.

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I’m completing this diary early on Thursday afternoon. So far, there have been six resignations but by the time you read this I suspect there will have been more.

If Penny Mordaunt, Andrea Leadsom, Liam Fox and Michael Gove aren’t seriously considering their positions, I am not quite sure what kind of backbone they think they have.

Dominic Raab has now got first mover advantage, and has instantly transformed himself into a frontline leadership candidate.

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I have to say that May put in a superb parliamentary performance yesterday. Having to stand up on your hind legs when you’ve just had two cabinet ministers resign can’t have been easy. And to take questions for two and a half hours is something that few other leaders across the world would ever have to do. Credit to her for coming through it with aplomb.

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This week, I feel a bit of a fraud writing for ConservativeHome. For the first time in a very long time, I do wonder if I could support the Conservative Party in a general election were it held tomorrow. If it were a snap election held on the basis of endorsing Theresa May’s Brexit deal, I don’t think that I could.

But here’s the dilemma. Who else could I vote for? Certainly not Labour, definitely not the Liberal Democrats, absolutely not UKIP, whose leadership I abhor with every fibre of my being.

The Greens? Another lot of pro-European zealots. But I don’t really believe in spoiling my ballot paper, either. And this is why I rarely believe people who say after some Conservative disaster or another, “I’ll never vote Tory again”. Time heals and most people go back to their normal political home.

May had better hope there really are four years between now and the next election. Many people will have forgiven the party for this Horlicks of a Brexit deal by then…but it’s entirely possible that this open wound won’t have healed by then, either.

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Last week I told the tale of Cox, Dicks and Willy. However, according to a senior cabinet minister who texted me having read it, I missed out the best story.

Terry Dicks, John McDonnell’s predecessor as MP for Hayes & Harlington, used to tell a story about a public meeting in the 1979 election when he was standing against Michael Cocks, the Labour Chief Whip in Bristol.

According to Terry, the well-spoken woman in the chair concluded the meeting with the words: “Well ladies, there you have it. Your choice is between Cocks and Dicks”. For some of us, it was ever thus…

Changing the Prime Minister, in itself, would solve nothing

A new leader would need a new plan to reverse this evident humiliation of May’s leadership and of British statecraft.

If we can congratulate Cabinet members on nothing else this morning, we can at least do so on their ability to speed read under pressure.  In less than a morning, they somehow managed to master 585 pages of the Brexit Draft Withdrawal Agreement, all without recourse to independent legal advice.  Plus the seven pages of the Outline Political Declaration – a mere bagatelle by comparison.  Yes, that’s right.  The Government wants us to hand over the best part of £40 billion for fewer than ten pages of unenforceable text. And our future negotiating leverage into the bargain.

But let’s stick for the moment to the Withdrawal Agreement.  Don’t judge it before you’ve read it, its backers said yesterday.  That they were supporters betrayed that they had already made a judgement themselves.  By the same token, they should have conceded that reading a document of that length takes rather more than a few hours.  None the less, we will take their advice.  Unlike a mass of newspapers and commentators, we do not pretend to have done so in full.

So we will make no comment for the moment on whether the Northern Ireland backstop has survived, with its implications for Scotland and the Union.  On the UK-wide or Great Britain backstop, and whether the latter can practicably leave it, de facto if not de jure, with all the consequences that has for our freedom to strike trade deals worldwide.  On whether that seven page declaration points towards Chequers, Canada, Cheqada – or anything bankable at all (and if there are any safeguards for the money).  Above all, on whether the whole package leaves us, in that neat reversal of William Hague’s famous saying, out of Europe, but run by Europe.  And on, if you prefer George Osborne’s brilliantly malicious assessment yesterday, whether or not the EU has Taken Back Control.

We will pause to make only one observation.  Theresa May’s claim that the agreement would allow us to take back that control – of borders, law and money – is already under siege, at least as far as its second part is concerned.  Paul Waugh of the Huffington Post has found 63 references to the European Court of Justice in the draft.  Ending its jurisdiction was at the heart of the EU referendum result.  The Conservative Manifesto committed the Party to it, not that most of members needed any persuading.

Where Waugh has trod, others will follow.  As we write, Martin Howe will be pouring himself another cup of strong black coffee, surrounded by gutted candles and legal tomes.  He will have laboured overnight to craft his assessment.  So will others.  By lunchtime, the Withdrawal Agreement will have been wrenched open, gutted, filletted, and its innards displayed to the world.  One thing is certain: bits of it will not look very appetising.  The Prime Minister will have passed them over in her statement yesterday evening.  One senior ERG member told this site yesterday that the agreement is like a Budget that will unravel on day two.

We are not at all sure that he is right.  This morning, it looks rather more like one of those Budgets that went to pieces on day one.  Today’s splash headlines make bleak reading for Downing Street.  How could they not, given the Cabinet’s verdict, which is all over them, and on the inside pages too?  Dominic Raab was palpably unhappy.  Geoffrey Cox compared the agreement to a life raft made up of oil drums and a plastic sail.  Michael Gove thinks it is bad, but that no deal would be worse.  Sajid Javid and Jeremy Hunt pushed at May to take if back to the EU for re-drafting.  Liam Fox dislikes the backstop.  Penny Mordaunt wants a free vote, so that she can oppose the agreement.  Esther McVey actually called for a vote, clashing with the Chief Whip and the Cabinet Secretary.  How on earth can any of the discontented third of the Cabinet, or more, look voters in the eye and claim they are content with it?  How can they go out and sell it?  It is significant that, yesterday evening, none of them were due to take to the airwaves this morning.

One last point on that Cabinet meeting.  Reporting of it has tended to divide members up into supporters and opponents of the agreement.  This is understandable, but flawed.  The Cabinet makes, as the Prime Minister said yesterday, collective decisions.  And as McVey has discovered, it does not vote.  Nor do its members shape the minutes.  If they are unhappy, they must either wait to be cheered up, or resign.  Those whose discontent spills over into opposition, like McVey, have not quit – so far.  Do they really intend to stay in office, hoping perhaps that the agreement collapses, or that the Commons votes it down, saying nothing about it at all?  Such a position would be worse than dishonourable, in a manner of speaking.  It would be ridiculous.

By then, events may well have overtaken them.  Perhaps Graham Brady will announce today that he has received 48 letters, and that a confidence ballot in Theresa May must be held.  Maybe he will not.  Perhaps it will come later, or not at all.  But even if it does, and she wins it convincingly, her troubles will be far from over. As matters stand, it is very unlikely that the agreement can get through the Commons.  Even if she survives a ballot, she might not be able to survive that.  The combination of a future Commons vote on the agreement and aleadership contest, ushering in a new Prime Minister, would be like a cutting-edge experiment with two new chemicals.  There is simply no knowing what it would bring.  We believe that a Conservative Prime Minister, faced with this Commons, can carry through Brexit if intent on it – even a no deal one, given the legislative state of play.  But it is possible that the mix could blow the laboratory roof off.

Our position on May’s leadership is well-known.  Like our members’ panel, we believe that she should not lead the Party into the next election.  Enraged Brexiteer MPs are itching to get her out now.  The sum of their view is that there is a lie at the heart of her policy – that she does not believe her own words; that no deal is better than a bad deal.  For this reason, they say, we are not properly prepared.  Downing Street and the Treasury have dragged their feet, and conspired to spring a new choice on the Cabinet yesterday: May’s Deal, a chaotic No Deal, or No Brexit.  And for this she has lost the DUP, in all likelihood, and with it her majority.

One doesn’t have to take a view on the agreement before accepting their point.  But they should reflect that changing the Prime Minister, in itself, would solve nothing.  A new Conservative leader would face the same old Commons.  He or she would need a new plan – Canada, plus or minus those three pluses; Nick Boles’ Norway-for-Now; or perhaps a transition to No Deal, as proposed by some Cabinet Ministers.  And given the numbers in the Commons, logic also points to a general election, sooner rather than later, to win a majority for change.  That runs the risk of a Corbyn Government – and, more pressingly as far as some Tory MPs are concerned, the loss of their seats.

Some Leavers will be tempted to join many Remainers, and say that this humbling pass, this evident humiliation of May’s leadership and of British statecraft, is the inevitable consequence of Brexit.  Our response is uncompromising.  The British people are entitled to vote to leave the European Union.  If they were now to be told that they can’t, because our politicians aren’t up to negotiating it; or the commanding heights of our institutions are against it; or government is incapable of planning for it – in short, that they must “come to heel”, in John Kerr’s illuminating phrase – what would that say to the British people about the state of our liberal demcracy and parliamentary government?  The potential consequences are so far-reaching that there is no need to spell them out.

May statement due for 17.00 pulled. Cabinet may not finish until after 19.00.

Interpretation one: its members are talking at length, but there’s no real resistance to the Prime Minister’s draft Brexit plan. Interpretation two: it is running into trouble.

Earlier this afternoon, it was reported that Theresa May would make a statement outside Downing Street at 17.00 or so.

Hurd appears to have misspoken, and confused a press statement with a press conference.  There will apparently be the first later, but not the second.

This is because Cabinet will now apparently not break up until 19.00 at the earliest.  Interpretation one: its members are talking at length, but there’s no real resistance to the Prime Minister’s draft Brexit plan.  Interpretation two: it is running into trouble.  Or maybe the explanation is a bit of both.

Our best guess is that some Ministers are asking for aspects of the draft deal at least to be revised.  There will certainly be calls for clarification.  We will soon find out if there was a push, concerted or unconcerted, for the draft not to be approved, at least at this stage.

If it is correct that Geoffrey Cox is promoting the view that the draft presents no real progress on the backstop, but that it offers a better deal than no deal at all, the meeting is unlikely to be going smoothly.  Brexiteer Ministers unwilling to resign will not wish to go out and sell it to the public on that basis.

The spectrum of resignation expectation has Esther McVey and Penny Mordaunt at one end, as the most likely to go, and Dominic Raab and Michael Gove at the other, as least likely.  David Mundell is a wild card.

As we write, darkness has fallen, and the lectern set for a statement is no longer in view.

Raab, Cox, Gove, Fox, Mordaunt – all these Cabinet members, and others, should prepare to resign today

They should first seek to persuade May not to press for a decision, since there will have been no opportunity for full timely study of the text.

As this month began, we set five tests for any Brexit deal that Theresa May might recommend to her Cabinet members.  They were as follows:

  • Would it hive off Northern Ireland?  Will there be either an an exit date or a unilateral escape mechanism from the backstop?
  • Does it threaten to break up the Union?  If there isn’t, and Northern Ireland is effectively to be kept in the Single Market, won’t that boost the SNP’s campaign for Scottish independence – and the break-up of the Union?
  • Would it trap the country in a customs union?  If Great Britain is to be put into a parallel customs union, will there be either an exit date or a unilateral escape mechanism from it?
  • Does it hand over money for nothing? Since a future trade deal will be covered by an unenforceable political declaration – not the Withdrawal Agreement – what safeguards are there against  shelling out £40 billion for nothing?
  • Chequers or Canada? Given that the political declaration is likely to be written in vague, Cheqada terms, which future does it really point to – Chequers or Canada?

In the wake of the Prime Minister summoning Cabinet members for one-to-one meetings yesterday evening, with a full Cabinet meeting due this afternoon, it is possible that there are reassuring answers to all these questions.

But it is more likely that, as we wrote then, the proposed deal would wreck the prospect of meaningful trade deals, hand over £40 billion for no bankable gain, and potentially threaten the break-up of the UK.

It is early days to draw definitive conclusions either way about the draft agreement’s contents, but it is clear that the planned settlements for Great Britain and Northern Ireland will be different.

And Sabine Weyand suggested to a meeting of EU ambassadors yesterday that the deal would effectively keep the whole UK in the Customs Union, force EU access to our fishing waters, and align us to Single Market rules.

Such a settlement would breach the Conservative Manifesto commitments to leave the Customs Union, and arguably the Single Market too – and threaten the survival of the Government if the DUP withdrew all support, as it is poised to do.

At any rate, it is evident that the Prime Minister is no longer driven by the belief, in the famous phrase from her Lancaster House speech, that “No Deal is better than a Bad Deal”.  Evidently, she is desparate for a settlement.

In a sense, then, one can scarcely blame her for seeking to bounce the Cabinet today.  Its members are being given this morning only to examine 500 or so pages of the Withdrawal Agreement alone before it meets this afternoon.

It will be impossible for them to undertake the full timely study of this text, plus legal advice about it, within this brief time-frame – let alone to get independent advice about what it all adds up to.

It follows that when May proposes the immediate approval of the draft deal today, Brexiteering Ministers have no option but to seek to persuade the Cabinet as a whole to withold that approval – even if that means missing the November deadline for a summit.

On our count, Sajid Javid, Jeremy Hunt, Dominic Raab, Gavin Williamson, Liam Fox, Michael Gove, Chris Grayling, Esther McVey, Natalie Evans, David Mundell and Penny Mordaunt have all variously asked questions or expressed doubts about where the deal is going.

Add Liz Truss, Andrea Leadsom and Geoffrey Cox to the list – all these are entitled to attend Cabinet, though they are not full members – and one reaches 14 of a total of 29, just under half.

Of course, it is the Prime Minister who takes the voices and shapes Cabinet minutes: its members don’t do anything so crude as cast votes.  In short, if she is determined to make the proposed deal the basis for a summit, Cabinet members aren’t well placed to stop her.

Which leaves only one course open to them.  If those resistant to approving any deal on the basis of a single meeting aren’t heeded, they will have no practicable alternative but to resign.

Our article of a month ago was headed: the Cabinet must stand ready to take back control.  Today may be the last chance that its members have to do so.

Iain Dale: If we had a government with Cox and Balls

Plus: Crouch’s revenge. Islam’s departure. Brexit, May’s prospective deal and Labour’s internal agonies. And: Trumpety-Trump as the President claims victory.

Iain Dale is an LBC presenter, a commentator with CNN and the author/editor of over 30 books.

Oh, how the Prime Minister may regret crossing Tracey Crouch, who resigned last week as Sports Minister over gambling regulation.

Why? Because Tracey is writing the Prime Minister’s biographical essay for the second volume of The Honourable Ladies, a two volume book I am editing with Jacqui Smith, containing essays about the 491 female MPs elected since 1918. I’m sure that last week’s feeling of complete let-down by the Prime Minister will have no impact on the conclusions which Tracey will draw in her analysis of Theresa May’s career so far.

The main question we should ponder if whether she will have been restored to ministerial office by the time the book comes out next September. Or maybe it should be whether the Prime Minister herself will still be in office.

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So farewell, Faisal Islam. He’s been poached by the BBC as their new Economics Correspondent, replacing Kamal Ahmed, who is taking on a new management role there.

Faisal’s departure from Sky News could well trigger quite a substantial lobby domino effect, depending on who is appointed to replace him. Beth Rigby, currently deputy political editor at Sky must fancy her chances, and I suspect that Sophie Ridge is a leading candidate too.

Another standout internal candidate would be Niall Paterson, who used to be a political correspondent at Millbank, then covered the defence beat and now co-presents the weekday breakfast show.

If they want to look outside their own team, I’d say Tom Newton-Dunn would be a strong candidate. He has been wanting to get into TV for some time and recently lost ou narrowly to Deborah Haynes for the Sky Foreign Editor job.

Of course, whoever gets the job will operate in the long shadow which Adam Boulton continues to cast. He is Mr Politics at Sky, and I suspect Faisal always found it quite difficult to make his own mark. Adam is a giant among political journalists, and there will be some who would happily make a case for him to return to his old job. He was brilliant at it.

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Those of you who have followed this column for some time will realise I have a slightly puerile sense of humour. So be warned, here goes.

It was pointed out to me yesterday that if Geoffrey Cox had been a member of Gordon Brown’s Cabinet, there would have been a Cox and Balls in the same government. Arf arf. And that if Geoffrey had been in Parliament in the 1980s when the Tories held Hayes and Harlington, not only would we have had Cox, but also Dicks – as in Terry Dicks.

And, of course, in David Cameron’s day we’d have had both Cox and Willy (Hague). There is also a very large Johnson on the backbenches. And as for Jeremy Hunt…  [More, more – Ed].

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Tonight, I am supposed to be having dinner with a Cabinet minister. However, I’m prepared for it to be cancelled just in case there is an emergency cabinet meeting on Saturday morning. The speculation is that the Prime Minister has done a deal with the EU over Brexit, and that she will lay it before her Cabinet before putting it to a relatively quick parliamentary vote.

Who knows if these rumours are true? And as to the contents of this deal? Well, obviously I have no idea – but I suspect that it is a deal which no-one will particularly like, but that it will be one which we will all have to live with. I am not a flat earther on it, but I do believe that if we are to stay in the Customs Union beyond the end of the transitional period, it can only be described as Brexit in Name Only.

We have to be able to sign unfettered free trade agreements with countries all over the world. I interviewed Mark Regev, Israel’s Ambassador, on Tuesday, and he told me that scoping discussions with Liam Fox were already at an advanced stage. We need to be able to sign these kind of agreements on January 1, 2021. My suspicion is that there will be many countries who will think that it’s just not worth the candle if we remain aligned to EU regulations beyond that date. I hope I’m wrong.

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Assuming that the Prime Minister can get the support of her Cabinet for a deal – and I’d have thought that this is likely, – we can expect a vote in Parliament around the first week of December.

In the end, it may come down to how many Labour MPs will support any deal struck by May. Clearly, such an agreement wouldn’t meet Keir Starmer’s ludicrous six tests but, since Labour say that a No Deal Brexit is the worst of all worlds, you could argue that it could justify voting for the deal – and then tell voters that this is in the national interest.

I suspect that it won’t happen, but if Labour did go down that road I think they would garner an awful lot of support. My current bet is that the deal will go through because enough of its MPs will vote for it to counteract the Conservative MPs who vote against. That could trigger internal mayhem in the Labour Party.

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I predicted on Monday that if the Democrats won the House of Representatives, Donald Trump would still claim victory. Guess what? They, did – and so did he.

I’m not sure these results really change an awful lot. The Senate balance means that even if the House tried to impeach the President over the next two years, it would fall at the first hurdle.

Full timely study. The basis on which Cabinet members should see legal advice on any Brexit deal.

There is no case for withholding it from them, for it only being shown after the event, or for not allowing them to study it.

Think it through.  Any Brexit agreement will come with a transition period.  During transition, we will remain members, in effect, of the Customs Union.  If no free trade deal is agreed when transition ends – currently expected to be December 2020 – a backstop will kick in.

That backstop will keep either Northern Ireland or the entire United Kingdom (let us pass over which for the moment) in a customs union.  In effect, it may bind Great Britain as well as the province to much of the Single Market, too.  Today’s Times says that the EU wants state aid, workers’ rights and environmental rules to be adhered to, a claim that has previously been reported.

All that being so, why would it want the whole UK or Northern Ireland, as the case may be, ever to leave the backstop?  It would have achieved an important objective, entirely understandable from its own perspective – namely, to ensure that we remain locked in to its economic model.

Trade talks would thus stretch on towards the distant horizan after 2020.  No wonder the EU won’t concede either a time limit or a unilateral escape clause from the backstop (an issue that Dominic Walsh of Open Europe explores on this site this morning).  As C.S.Lewis put it in another context: “easy in but not easy out, as the lobster said of the lobster pot”.

This explains why Jacob Rees-Mogg believes that the current fever over who should see the Attorney-General’s legal advice on any Brexit agreement is a side issue.  (He set out that view in our Moggcast earlier this week.)  It also provides the basis for the ERG declaring that it is opposed to any extension at all of the Customs Union in the wake of the transition period, either de jure or de facto.

Some will disagree – arguing that a fully-fledged trade deal won’t be ready by 2020; that some backstop provision is reasonable, and that we’ve signed up to it, but that it can’t be allowed to last forever.  They therefore want that unilateral escape clause, or perhaps a time limit.  Which brings us to the contested business of Geoffrey Cox’s legal advice.

It is astounding in retrospect that some Cabinet Ministers at least saw none in wake of last December’s joint report, in which the backstop was originally set out.  Michael Gove was assured by Downing Street that it didn’t commit Northern Ireland to full regulatory alignment.  On this basis, it cleared a Sunday Telegraph article by the Environment Secretary arguing precisely that.

“Fool me once, shame on you.  Fool me twice, shame on me, Gove said recently in Cabinet.  He and other members want to see and study the full legal advice in the event of a deal.  The DUP, Labour and other opposition parties want Parliament to see it, too. There may be a vote on a Humble Address to that effect next week.  David Davis and others want the advice published.

The case against publication is that legal advice to the Government must be confidential because, if it is not, those who write it will inevitably tailor their advice, knowing that others than their client will read it.  However, such advice has been published previously – notoriously in the case of Peter Goldsmith’s about the Iraq War, eventually issued in 2005.

There is a strong case now for arguing that, given the supreme national importance of Brexit, the full legal advice about any deal should be published before a decision is taken, rather than afterwards.  Certainly, it will be very hard to keep such advice out of the hands of MPs as a whole, let alone the relevant Select Committees.

But while Downing Street has a case against publishing the full advice, and even against divulging it to Parliament, it has none against letting Cabinet members study it.  The advice is advice to the Government – not to any single member of it, however senior.  The Ministerial Code says that while its conclusions can be presented in summary form, “the complete text of the advice must be attached.”

A senior backbencher told ConservativeHome yesterday that he would expect such a summary to be a political argument for any deal underpinned by legal analysis.  Under these circumstances, Geoffrey Cox would as a politician (as we anticipated on Monday) be supporting the proposed deal and, as a lawyer, be setting out its legal meanings and implications.

There would be nothing remotely untoward about this.  Nor is the Attorney-General the man to bend his reading of the law – which would, in any event, be informed by other lawyers in his department, and elsewhere.  None the less, the point still stands: Cabinet members would be entitled to see the full advice as well as the summary.

The reasons are obvious.  Legal advice is seldom unambiguous.  Its small print may have big implications.  No wonder some Cabinet members want to see the full advice, see it in good time, and be able to study it: the blessed trinity of their demands.  And no wonder, in turn, that Number Ten is apparently reluctant to concede this.

A question remains about whether only a final deal, signed off by the Prime Minister at a summit, should be subject to full timely study by Cabinet members.  The common sense solution, since Downing Street will be looking for their support, is for them also to see legal advice on the Government’s proposals, such as those that they are currently being shown.

Theresa May is evident desparate to get a move on (though our EU interlocuters are less eager to rush).  The Commons is in recess.  The Cabinet may be summoned over the weekend.  Either way, we are approaching a climacteric.

Dominic Walsh: The backstop must be temporary. It can’t just be a bridge to…itself.

Cox told the Cabinet that the EU’s admittance that the backstop can be temporary was a step forward. He is right, although the devil will be in the detail.

Dominic Walsh is a policy analyst for Open Europe.

The negotiations on the Brexit Withdrawal Agreement are now entering a critical stage. The overwhelming focus of the negotiators is the Northern Ireland backstop, which has effectively been the sole obstacle to a deal for months. If a compromise cannot be reached, a No Deal Brexit – with all the attendant negative consequences for both Northern Ireland and the Republic of Ireland – is the most likely outcome.

Open Europe’s new paper, Resetting the Backstop, explores how the impasse over the backstop came about, and considers the possible ways ahead to a deal. We argue that while a strict time-limit would be neither negotiable nor desirable, any backstop arrangement must be temporary – a position recently backed by Charlie Falconer, Labour’s former Lord Chancellor. Recent news reports have also hinted at movement in this direction from the negotiators. While the UK appears to have conceded that the backstop cannot have a strict time-limit, there have also been welcome signs of acceptance from the EU that, in principle at least, the backstop cannot apply in perpetuity.

Although some Eurosceptics may wince at the prospect of a customs union-style backstop without a clear end date, a time-limited backstop will not be negotiable with Ireland or the EU, and would add unnecessary pressure to complicated negotiations on the future relationship. However, to square the circle of a backstop which is not time-limited but is still temporary, there needs to be an alternative exit mechanism for the UK. Without this, the UK would be faced with the unpalatable prospect that the EU could keep it ‘trapped’ within the backstop – in effect, unable to leave a customs union (which would include wide-ranging rule-taking) without ceding economic sovereignty over Northern Ireland.

Recent reports mention a “review mechanism” for the backstop. Geoffrey Cox reportedly told the Cabinet on Tuesday that the EU’s admittance that the backstop can be temporary and willingness to discuss a “review mechanism” were major steps forward. He is right, although the devil will be in the detail. In particular, a key bone of contention is who controls such an exit mechanism. Some ministers, understandably concerned that the UK “takes back control” after Brexit, are reportedly pushing for the UK to be able to trigger any exit mechanism unilaterally. But Ireland, in particular, will likely fear that this would enable a future UK Prime Minister to initiate a chain of events which would lead to a hard border.

A mutual review mechanism, perhaps involving independent arbitration, may offer a way forward – though it is debatable whether a ‘Ukraine-style’ mechanism, with its associated role for the European Court of Justice, could really be considered ‘independent.’ A mutual review mechanism would potentially allow both sides to save face. The UK would be able to say that it has some control over the process, rather than requiring the EU’s permission. Ireland, meanwhile, will be able to say that it has avoided a situation in which the UK can unilaterally exit the backstop and trigger a hard border. The presentation may have to be fudged somewhat; it is difficult to see how the border issue can be comprehensively solved before discussions on the future relationship have taken place. But with so little time left, for either side to force the issue now risks triggering No Deal, which would be politically and economically damaging to Northern Ireland and the Republic of Ireland alike – to say nothing of the UK as a whole and the rest of the EU.

Fundamentally, the backstop can only work as a ‘bridge’ to the future UK-EU relationship. The EU and Ireland like to refer to it as “all-weather”, and indeed the December Joint Report says that it must apply “in all circumstances.” But the idea that a Northern Ireland-only backstop could be practicable or enforceable in the absence of a wider UK-EU deal is implausible – as some EU officials have admitted, it cannot be “tsunami-proof.” Clearly, if there can be no Withdrawal Agreement without a backstop, equally there can be no backstop if there is no Withdrawal Agreement. But even with a Withdrawal Agreement, the two sides could fail to reach a trade agreement during the transition period. The prospect of the UK trading with the EU on WTO terms – which would require customs and regulatory checks between the two – will therefore remain long after March 2019. Even if this version of ‘No Deal’ came after the UK had signed up to a Northern Ireland-only backstop, it is unclear how this backstop could really operate in practice if the UK and EU failed to conclude a future partnership. In such a scenario, the EU would no longer have any say over the UK’s trade or regulatory policy; how then could it enforce customs or regulatory checks within the UK’s sovereign territory?

If there were a clearer path to a future relationship which would obviate the need for both East-West and North-South checks in Northern Ireland, the Government could afford to be more relaxed about the backstop. However, the EU has fuelled uncertainty over the future relationship by rejecting the Government’s ‘Chequers’ proposals, offering instead two unacceptable options: a Canada-style FTA for Great Britain (creating a border in the Irish Sea), or a permanent ‘EEA plus customs union’ relationship (which would arguably not deliver on the referendum result). Given this, there is a risk that a backstop conceived as an “all-weather” insurance policy becomes a permanent end-state.

Once the backstop’s infeasibility in a No Deal scenario is grasped, the “all-weather” requirement seems an impossible bar to reach. The UK’s ‘bridge’ conception – in which the backstop serves to prevent a hard border until a future relationship serving the same function is in place – is far more realistic. However, the backstop cannot be a bridge to nowhere. If negotiations over the future relationship break down, the UK must retain the option for all four nations to leave the backstop as one.

How a Brexit deal would be done

What will happen this week? When could a summit take place? What would the Cabinet say – and what might the Attorney General do?

This week’s Cabinet meeting

ConservativeHome is told that there are two Brexit-related items on the agenda for discussion at tomorrow’s Cabinet meeting.  The first is the now-weekly deliberation on preparations for leaving itself and for No Deal.  The second is a more general exchange and gathering of views.

That might seem to provide an opportunity for Theresa May to put a draft deal to Cabinet members.  It looks like a convenient week for Downing Street to do so.  This is because the Commons is in recess from tomorrow until next Tuesday, November 12.  It would suit Number Ten for MPs to be absent if and when proposals are put to the Cabinet, because this would minimise the opportunities for hostile reaction and the inevitable talk of a leadership challenge.

However, it appears that the Government and the EU have not yet reached an outline agreement, though there is so much smoke and mirrors that one can never be quite sure.  In any event, the Prime Minister would presumably not want to risk putting a proposal agreed by Sabine Weyand and Olly Robbins straight to Cabinet members. (Remember what happened three or so weeks ago.)

A summit in mid-to-late November?

A more likely way of proceeding would be for the Cabinet to have another discussion about the key issues at stake – including five key issues we raised yesterday: the Northern Ireland backstop, implications for Scotland and the Union, a UK-wide customs arrangement, the enforcability of a political declaration, and what this last might contain.

We hope that Cabinet members press, as some did at last week’s meeting, for three conditions to met for any proposed deal.  That they approve it; that the Attorney General gives a view of it in writing, and that the Chief Whip offers an assessment of its likelihood to pass the Commons – in particular, whether it would effectively split the Conservative Parliamentary Party and leave Theresa May reliant on Labour backbench votes for it to pass.

Cabinet members told this site yesterday that any draft deal must be put to them for approval.  Number Ten wants to get a move on, because the more time ticks away before March 29, the less of it the Government will have to get its legislative preparations completed.  A date for a special summit to deal that deal was previously provisionally pencilled-in for the weekend of November 17-18.

Will Raab go to Brussels this week?

One view is that settling a mid-to-late November date for a summit is only possible if Dominic Raab flies to Brussels later this week to agree it with Michel Barnier.  If this is correct, the Prime Minister would seek tomorrow to get broad agreement from the Cabinet for him to do so on an agreed basis.

If Raab and Barnier reached an agreement about a draft deal and summit date, May would duly go to the latter herself to formalise the agreement in principle.  There is talk of a four-way press conference at the end of such a summit, starring the Prime Minister, Barnier, Donald Tusk…and Raab himself (to show the Parliamentary Party that the pro-Leave Brexit Secretary is signed up).  The deal would then be put to Cabinet.

Such a timetable would leave a dangerous gap for Number Ten between an agreement to hold a summit and it actually taking place.  It would presumably be filled by claims and counter-claims about what was in the deal to be signed off.  There would be that talk of 48 letters to Graham Brady.  However, Brexiteering Tory MPs would probably want to wait to see the final product.

Would there be Cabinet resignations?

Let us presume for a moment that this is controversial.  A question that follows is: would any Cabinet members resign and, if they did, would that leadership challenge follow?  (This line of thinking shows the importance to May of getting Raab’s assent to any deal.  If she doesn’t have it, she won’t have his backing in putting one to Cabinet.  Which suggests that she is now dependent on his agreement to be able to do so.)

The Prime Minister survived the resignations of David Davis and Boris Johnson without then facing a confidence ballot.  The consensus expectation is that she would similarly be able to withstand the loss of Andrea Leadsom, Esther McVey and perhaps Penny Mordaunt – and that Liam Fox and Chris Grayling are unlikely to quit.

Michael Gove going would be more problematic.  So would be the departures of Sajid Javid and Jeremy Hunt.  But these are unlikely.  In particular, Cabinet members whose departments would be in the front line in the event of No Deal have an obvious incentive to stay on.  These are Gove (agricultural products at the border), Grayling (transport and prospective queues, particularly in Kent), Javid (border control and security arrangements) – and Matt Hancock (medical supplies), though there is no realistic prospect of the pragmatic last resigning.

What would be the role of the Attorney General?

The arrival in Cabinet of Geoffrey Cox, with his track record as a Brexiteer and authority as a senior QC, has transformed its balance of debate.  The Attorney General played a central role in demolishing a set of Robbins/Weyand proposals in the middle of last month.  He has turned up to a meeting of Andrea Leadsom’s pro-Leave pizza club of Ministers.

Cox is surely no Peter Goldsmith – prepared to issue different drafts of guidance, each closer to the view that the Prime Minister wants.  There might well be a row about Cabinet members’ access to his written advice, which will be provided to May.  Number Ten will be nervous about it leaking if distributed.  Labour, other opposition parties and many Conservative MPs will demand that Parliament sees it.  We want it to be published.

A conventional expectation is that Cox would make an oral presentation to Cabinet.  Is it conceivable that he could stress the distinction between his legal responsibilities and his political views?  (“Well, Prime Minister: as a lawyer, my view is that under these proposals we could not escape the backstop.  But as a politician, my take is that they are preferable to No Deal.”)

If the Cabinet approves a deal, what happens next?

The Commons would then undertake its “meaningful vote”.  Today, we glance only at one aspect of it.  Let us suppose for a moment that Brexiteers are unhappy with a deal agreed by Cabinet, and that perhaps there have been resignations.  We stress that neither of these will necessarily be the case in the event of a deal.

Would, say, ERG members immediately flood Graham Brady will a mass of letters demanding a confidence vote – thus risking blame for alone seeking to bring down May at a crucial moment in the Brexit drama?

Or would they wait for the meaningful vote, join MPs from other parties in opposing the Prime Minister’s plan – and hope that, if it went down, she would then resign?  This would arguably leave them less directly exposed to criticism from fellow Tories.  We don’t know what the answer is, but the question is worth asking.

Cox is hoisted shoulder-high to the top of our Cabinet League Table

We have occasionally seen precipitous falls in Cabinet members’ scores. Vertiginous rises are rarer. Indeed, it is hard to think of a jump quite like it.

 

When our last Cabinet League Table was published, Geoffrey Cox had neither made his ringing speech to the Conservative Party Conference, nor yet brought a new clarity in Cabinet to what comes before it from the Brexit negotiations. And though he was sat mid-table, his rating was a modest + 11.

This month, it soars by almost 60 points to take him to the table’s top. We have occasionally seen precipitous falls in Cabinet members’ scores. Vertiginous rises are rarer. Indeed, it is hard to think of a jump quite like it. We may now even get a Cox-for-leader ramp, though our view is that he is well placed to take over, in due course, at Justice.

The Attorney General has clearly raised great expectations among the pro-Brexit generality of party members. But their approval is not confined to those who campaigned for Leave during the EU referendum.  Sajid Javid and Jeremy Hunt are second and third. The Foreign Secretary’s rating has scarcely moved. The Home Secretary’s has actually risen slightly.

Dominic Raab is now fourth. Esther McVey has slid: that will be the impact of the Universal Credit row. Gavin Williamson is out of negative territory. We suspect that Philip Hammond’s score would have been higher had the survey gone out post rather than pre-Budget, but the Softer Brexiteers, as usual, take a pasting, with the Prime Minister’s score down on last month.

Henry Hill: Cox agrees to meet Tory MPs campaigning for troops who served in Northern Ireland

Also: May meets new Plaid leader in Downing Street; Bradley mulls ‘external mediator’ for devolution talks; SNP row over ‘People’s Vote’; and more.

Cox agrees to meet campaigners against ‘witch-hunt’ of Ulster veterans

Geoffrey Cox, the Attorney General, has been enjoying a rapid ascent to fan-favourite status after a star turn on the conference stage and some high-profile leadership against bids to fudge the Irish backstop.

This is only likely to be furthered by the news that, as reported in the Sun, he has agreed to meet representatives of the strong Tory campaign against the ‘witch hunt’ of ex-servicemen who served in Northern Ireland during the Troubles.

Over 150 Conservative MPs and peers have signed a letter to May attacking proposals for another round of historical investigations into the conduct of British security forces in the Province, calling for veterans to be offered “lasting legal protection” from further harassment – and accusing the Government of breaking the Military Covenant.

Mark Francois, a former defence minister, has joined the chorus of MPs urging the Prime Minister to take action, according to the News Letter.

The prosecution of now-elderly former soldiers is especially fraught in the aftermath of the revelation that many “on-the-run” terror suspects had been granted a de facto amnesty by the Government under the so-called “comfort letter” scheme.

May invites Plaid leader for talks in Downing Street

Wales Online reports that Adam Price, the newly-elected leader of Plaid Cymru, held face-to-face talks with Theresa May in Number Ten this week.

The Welsh nationalists currently hold four seats in the House of Commons, and may have a crucial role to play in what could be knife-edge Brexit votes. However, Price apparently reiterated his party’s commitment to a second referendum, which doesn’t suggest it’s likely to back the Government.

He also issued the inevitable request for yet more devolved powers, this time a range of economic ‘tools’ and an expanded ability to borrow, and had a dig at the Labour-led Welsh Government for failing to exert adequate influence at Westminster.

In other Plaid news, a former nationalist member of the Welsh Assembly has avoided prison after pleading guilty to making indecent images of children.

Bradley mulling ‘external mediator’ for Northern Ireland

Karen Bradley is “actively considering” whether and how an external mediator could help to get the Province’s devolved settlement up and running again, according to the Belfast Telegraph.

The Northern Irish Secretary has been come in for fresh criticism after the Government once again ducked the prospect of direct rule, instead opting to grant civil servants the power to make decisions normally made by elected and accountable politicians.

Sam McBride, of the News Letter, reports that the local Attorney General has already had to stop them “literally making up criminal offences“, and questions remain as to how long Westminster can continue to put off taking up political responsibility for Northern Ireland – especially in light of concerted efforts by mainland MPs to drive through changes to sensitive areas of social legislation such as abortion and gay marriage.

Wishart urges Sturgeon to drop support for second referendum

The EU referendum has posed a number of strategic challenges for the Scottish National Party, the latest of which is what to do about the campaign for a rematch.

On the one hand, Brexit has struck a major blow to Scotland’s easiest path out of the Union – ‘independence in Europe’. For all that hardline remainers such as Guto Bebb still extol the old orthodoxy, it is greatly in the interest of the separatist parties to see the 2016 vote overturned.

Yet to do that would be to set a very dangerous precedent that a referendum result should be revisited and ratified by the electorate after the negotiations. The danger this poses to SNP aspirations is obvious.

This explains why a row has broken out this week amongst the normally iron-disciplined Nationalists. Pete Wishart, who now has the distinction of being the Party’s longest-serving MP, accused Nicola Sturgeon of undermining the independence campaign by backing a ‘People’s Vote’, campaigners for which have in turn urged the First Minister to distance herself from him.

In other Nationalist news, this week the party was forced to suspend a member after he authored a xenophobic and antisemitic blog which was shared by SNP social media channels, according to the Herald.

DUP challenged over Budget role

The Ulster Unionists have claimed that the Government has called the bluff of its Democratic Unionist allies, after the latter backed the Budget despite threats to withhold their support over the Irish backstop, the News Letter reports.

Lord Empey, who previously led the UUP and helped to forge its ill-fated alliance with the Conservatives at the 2010 election, said that the DUP were retreating with “their tail between their legs”.

In response Sammy Wilson, the DUP MP for East Antrim, has reiterated that his party might still withdraw support from the Prime Minister at a future date.

This comes as more details emerge about the Northern Irish party’s influence. A report in today’s Daily Mail indicates that regular high-level meetings between the DUP’s Commons leadership and senior Government figures, including David Lidington and Julian Smith, have been taking place on a monthly basis.

The party has also been keen to take credit for several measures in the Budget, both Ulster-related – such as the £350 million city deal for Belfast – and UK-wide measures such as the Armed Forces Covenant donation.