Theresa May’s hopes of securing House of Commons approval for her Brexit deal suffered a shattering blow as leading Tory and DUP eurosceptics said they would not recommend that MPs vote for it.
The so-called Star Chamber of lawyers convened by the Leave-backing European Research Group found that agreements reached by the Prime Minister in 11th-hour talks in Strasbourg do not deliver the legally-binding changes the Commons has demanded.
Their judgment came after Attorney General Geoffrey Cox told MPs that the changes “reduce the risk” that the UK could be trapped indefinitely in the backstop, but do not remove it altogether.
In a significant setback to Mrs May’s effort to overturn the 230-vote majority by which her deal was rejected in January, Mr Cox said that “the legal risk remains unchanged” of the UK being unable to leave the backstop without EU agreement.
Shadow Brexit secretary Sir Keir Starmer said Mr Cox had confirmed that “no significant changes” had been secured in two months of negotiations and the Government’s strategy was “in tatters”.
Charles Walker, vice chairman of the 1922 Committee of backbench Tory MPs, warned that defeat in the second “meaningful vote” on the Withdrawal Agreement on Tuesday evening would lead to a general election.
He told BBC Radio 4’s World At One: “If it doesn’t go through tonight, as sure as night follows day, there will be a general election within a matter of days or weeks.
“It is not sustainable, the current situation in Parliament.”
Mr Cox’s advice was issued the morning after Mrs May’s dash to Strasbourg to finalise a deal with European Commission president Jean-Claude Juncker which she said would reassure MPs that the backstop arrangements to avoid a hard border in Ireland after Brexit will not become permanent.
The pair agreed a “joint instrument” setting out the legally-binding nature of their promises to seek alternative arrangements to avoid the need for a backstop, as well as a “supplement” to November’s Political Declaration making clear that they will seek swiftly to seal a deal on their new trade and security relationship.
Alongside these documents was a “unilateral declaration by the UK” which sets out “sovereign action” by which Britain could seek to have the backstop removed if the EU acted in bad faith.
On a day of high drama in Westminster, the Cabinet gave its backing to the package at its weekly meeting chaired by the Prime Minister at 10 Downing Street.
Mrs May said passing the vote would allow the country to move on to a brighter future, while the alternative was uncertainty with no guarantee of what happens next.
Before heading to the Commons to address Tory MPs and make a statement to the House, she concluded the meeting by saying: “Today is the day. Let’s get this done.”
But momentum seemed to be shifting against the Prime Minister, as Mr Cox released his advice.
The Attorney said that the documents agreed in Strasbourg “reduce the risk that the United Kingdom could be indefinitely and involuntarily detained” in the backstop if the EU fails to show good faith in negotiating a trade deal to replace it.
But he warned that the question of whether a satisfactory agreement on a future UK/EU relationship can be reached remains “a political judgment”.
And he said “the legal risk remains unchanged” that if no such agreement can be reached due to “intractable differences”, the UK would have “no internationally lawful means” of leaving the backstop without EU agreement.
In a statement to the Commons, Mr Cox told MPs: “There is no ultimate unilateral right out of this arrangement. The risk of that continues.
“But the question is whether it is a likelihood, politically.”
Moments later, the Star Chamber issued its opinion: “Yesterday’s documents considered individually and collectively do not deliver ‘legally binding changes’ to the WA or to the (backstop) Protocol.
“They fail to fulfil the commitment made by Government to the House in response to the Brady amendment ‘to obtain legally binding changes to the withdrawal agreement’.”
A Conservative member of the group, Sir William Cash, said: “In the light of our own legal analysis and others we do not recommend accepting the Government’s motion today.”
Crucially, sitting on the panel alongside six Tory MPs and an independent QC was Nigel Dodds, Westminster leader of the Democratic Unionist Party.
The DUP has not yet formally announced which way its 10 MPs will vote, but there now seems little prospect of them rallying behind the Prime Minister.
Their decision is likely to be highly influential on many of the Conservatives who rebelled in the first “meaningful vote” because of their concern over the impact of the Withdrawal Agreement on Northern Ireland.
Senior Conservative Leaver John Whittingdale told the Commons Brexit Committee that the Attorney General’s advice was “pretty terminal” for Mrs May’s plan.
Brexit-backing Tory backbencher Andrea Jenkyns tweeted: “Nothing has really changed, and it is still a bad deal so unable to vote for this.”
Sir Keir said in a tweet: “Attorney General confirms that there have been no significant changes to the Withdrawal Agreement despite the legal documents that were agreed last night. The Government’s strategy is now in tatters.”
At a late-night joint press conference with Mr Juncker on Monday, Mrs May said she “passionately believed” that three new documents provided the legal assurances critics of her stance had called for.
“Now is the time to come together to back this improved Brexit deal and to deliver on the instruction of the British people,” she said.
Mr Juncker warned that if MPs voted down the deal a second time, “there will be no third chance”. And he said that any extension of the two-year Article 50 negotiation process could not go beyond May 23 unless the UK took part in European Parliament elections beginning that day.
MPs are expected to vote at 7pm, with Environment Secretary Michael Gove saying it is “make your mind up time”.
Ireland’s Taoiseach Leo Varadkar said: “The further text agreed yesterday provided additional clarity, reassurance and guarantees sought by some to eliminate doubts or fears of some, however unreal, that the goal was to trap the UK indefinitely in the backstop.
“It is not – these doubts and fears can be put to bed.”
Dutch Prime Minister Mark Rutte said he hoped MPs would back the deal as “there is no alternative”.
If the package passes the Commons, leaders of the 27 remaining EU states will be asked to endorse the new documents at a scheduled European Council summit in Brussels on March 21-22, before the final step of ratification by the European Parliament.
Labour leader Jeremy Corbyn has called on MPs to reject the deal and accused Mrs May of a plan to “recklessly run down the clock” before March 29.