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Why Theresa May needs an escape clause

20 October 2018

10:37 AM

20 October 2018

10:37 AM

Theresa May has one route to a Brexit deal that can avoid irrevocably splitting her party and bringing down her government, I say in The Sun this morning. She needs to persuade the European Union to replace the Northern Ireland backstop with a UK-wide one and to accept an escape clause to show that this temporary UK/EU customs union won’t become permanent.

Influential Cabinet Ministers expect the government to decide on the escape clause it will propose to Brussels in the coming days. The Brexit negotiations will then resume with the EU in the second half of next week.

Key Cabinet Ministers have one test for the escape clause: is it legally meaningful. Just putting the word temporary in front of the phrase customs union, a solution favoured by some at the heart of government, won’t be enough for these Secretaries of State. One tells me that it has ‘got to be legally binding and enforceable, something that is vague and not enforceable won’t get through parliament’.

All of this makes the newest face at the Cabinet table, the Attorney General Geoffrey Cox, absolutely crucial. Cox is a Brexiteer and one of the finest legal minds in the country.

Ministers will defer to him on whether this escape clause is worth the paper it is written on. As one of those helping coordinate the Brexiteers in government tells me, Cox values his reputation too much to try and spin ministers a line. They are confident he’ll give them an honest assessment of the escape clause’s worth.

Cox’s influence will run throughout this process. I understand that the bulk of the Pizza Club of Cabinet Ministers who met on Monday night have agreed not to back the final Brexit deal until they have seen the legal advice. I am told that Michael Gove made clear at Cabinet this week that he couldn’t back any Northern Irish backstop until he had been shown ‘clear, written legal advice’ on it.

This insistence on seeing the legal advice is meant to prevent a repeat of what happened last December when Number 10 gave Brexiteer Cabinet Ministers assurances about what the backstop meant which were not borne out by events.

So, the question becomes will the EU be prepared to engage with the UK on all this? Well, there is a cautious optimism in Number 10 that the political will to do a deal is beginning to be there on the European side.

Interestingly, there is also a sense that if agreement can be reached on the backstop, then the  withdrawal agreement has a better chance of passing through parliament than previously thought. One of those who has read the draft political declaration tells me that the UK/EU ‘future relationship is more to the taste of ERG types than expected’.

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