Advertisement

Will lawyers settle our Brexit destiny?

Attorney general Geoffrey Cox is playing a key role. Credit: PA

Should the UK's decision to leave the EU be settled in an argument between seven male, white, middle-aged Tory lawyers plus one woman of Indian ancestry and - on the other side - a single white, middle-aged, male Tory lawyer?

Because arguably that is what's happening, in the current off-stage conversation over a possible reform to the Northern Ireland backstop between the Tory Brexit European Research Group's "star chamber" of eight lawyers, on the one hand, and the attorney general Geoffrey Cox – whose outcome could well decide whether Theresa May's Brexit deal, with all its massive implications for this nation's future, is approved in the coming ten days.

Because if Cox can satisfy the star chamber that the backstop is not forever – and personally I feel it is highly improbable that he will – then most of the rebel ERG Brexiter MPs will be converted to May loyalism at the very last, and her deal will pass. And if not, which is where my money sits, not.

My point is not about whether or not we should Brexit, or whether or not her version of Brexit is the bee's knees of the bee's bum.

It is about whether it is remotely appropriate that the nature and timing of our historic departure from the EU - which was a decision made in a poll of 47 million people - should now be settled by nine barristers and solicitors in an arcane juridical dispute about the hierarchy of international treaties.

Because it is not stretching the point too much to say this is precisely the station at which the slow train to Brexit is currently parked. Which is to render absurd the greatest exercise ever in British popular democracy.

By the way, I have nothing against male white middle-aged Tory lawyers. Some of my almost best friends fit that description.

But, except as a satire on the parlous state of politics, it never occurred to me that the prosperity, security and international influence of the nation would be largely in their hands

Theresa May will learn the ultimate fate of her deal this month. Credit: PA

In a way it is hard to blame the ERG or the attorney for this rum state of affairs.

Because it was more or less inevitable that Brexit would become a lawyers' feast at the moment the prime minister put the full weight of her office behind the so-called Brady amendment, which forces her to endeavour to replace the backstop with "alternative arrangements" to keep open the Northern Ireland border.

Now for the avoidance of doubt, it does not take a brilliant 1000-guineas-an-hour silk to work out that there is literally no chance of the prime minister honouring the Brady amendment in a literal sense.

The PM has already conceded that the backstop will neither be ditched by the EU, nor amended within the Withdrawal Agreement that contains it and that the best she can hope for is a legally binding interpretive text that – if she's lucky – will be seen as having treaty status.

But according to the Sunday Times, the ERG – showing unwonted agility and flexibility of mind – are now interpreting "replacement of the backstop" with a "clearly worded, legally binding, treaty-level clause that unambiguously over-rides" the withdrawal agreement, AND does more than "re-emphasise/re-interpret the temporary nature of the backstop", AND allows Cox to change his current legal advice that the backstop "would endure indefinitely", AND gives "a clear and unconditional route out of the backstop" if talks on a future relationship collapse, which could include "a time limit or a unilateral exit mechanism".

Now, for the avoidance of doubt, for the ERG to shift from the wording of the Brady amendment to what Michael Tomlinson, one of the ERG's star-chamber eight, told the Sunday Times is undoubtedly the mountain moving to the prophet. It is astonishing.

And – some would say perniciously – it substitutes abstruse legal exegesis for the contest between big ideas which ought to be the Brexit battleground.

Or at least it will do for a few days.

Sir Graham Brady has indicated he will now support Mrs May's deal. Credit: PA

Because in truth, and as I said on Friday, the ERG's legal tests seem to me to have been flunked even before they are formally set.

The point is that on the basis of the unanimous position of the EU's 27 governments, it is simply impossible for the EU to offer the "clear and unconditional route out of the backstop" demanded by the ERG, in any kind of legally binding text – because to do so would be to abandon the most basic principle underlying the backstop, which is that it is there to keep open the border on the island of Ireland for all seasons and for all time, till some other way has been found to do so.

Which means that however much the tyranny of lawyers offends against the British sense of what is proper, their rein over Brexit may thankfully be short-lived.

If they don't collude to smuggle Theresa May's Brexit deal over the line, but instead drown it before landfall – which seems altogether more probable – we’ll be back to rowing over what matters, which is what kind of relationship with the EU will nurture the Britain we believe we deserve (probably one in which lawyers are invisible, self-deprecating servants).