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Theresa May's Chief Legal Adviser Has Delivered A "Very Stark" Assessment Of Her Brexit Deal

Attorney general Geoffrey Cox is expected by ministers to back the prime minister after telling colleagues it was "mutually uncomfortable" for both the UK and the EU.

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Attorney general Geoffrey Cox
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Attorney general Geoffrey Cox

Geoffrey Cox, the pro-Leave attorney general whose legal advice will be pivotal to Theresa May’s chances of securing support for the Brexit deal, has given a “very stark” assessment of the deal to his cabinet colleagues while concluding that the most contentious element is just as uncomfortable for the EU as it is for the UK.

Cox, who has emerged as a key player in the Brexit negotiations since joining the cabinet in July, is expected by colleagues to back the deal despite having expressed strong reservations about legal mechanisms over how to exit the proposed UK-wide temporary customs union arrangement that would come into force if the two sides can’t agree a future trade deal that avoids a hard border in Northern Ireland.

According to a cabinet source with knowledge of the content of conversations that have taken place between ministers on Tuesday and Wednesday, Cox told colleagues that the arrangement is “mutually uncomfortable” for both sides — suggesting it is unlikely that the EU will try to trap Britain inside the customs union indefinitely, as Brexiteer cabinet ministers and backbenchers fear.

The attorney general also told ministers that the deal agreed by UK and EU negotiators included an “independent arbitration” mechanism to determine whether both parties were negotiating a future trade deal in good faith.

The attorney general’s support is likely to provide enough cover for most cabinet members, limiting the potential for a widespread ministerial revolt, the source predicted.

Brexiteers have feared that when a future trade deal is being negotiated after the UK leaves the EU, Brussels will act in “bad faith” — refusing to reach an agreement and so keeping the UK in a customs union. An independent arbitration mechanism would compel both sides to carry out the talks in good faith, the negotiators believe.

Although other senior ministers also raised concerns about the UK’s ability to exit any customs union arrangement, and the possible loss of control and leverage once a deal is signed and sealed in March 2019, they too are expected to back the prime minister out of fear more than enthusiasm, said the cabinet source.

But senior ministers are currently highly sceptical that any deal will go through parliament because as things stand May would need a significant number of Labour votes to carry her over the line.

Prime minister Theresa May
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Prime minister Theresa May

The substance of the so-called backstop, an insurance policy to avoid a hard border between Northern Ireland and the Republic of Ireland under all circumstances, hasn’t changed since earlier iterations, EU and UK sources said.

BuzzFeed News reported last week that ambassadors from the EU’s 27 remaining member states were told on Friday that under the proposed backstop architecture, there would be three possible options come the summer of 2020.

  • The backstop becomes superfluous because a hard border will have been avoided through an agreement on the future UK–EU relationship;
  • The transition period, currently planned to last until the end of that year, is extended, buying negotiators more time;
  • Or the backstop is activated, and the UK enters into a customs union with the EU.

The longer transition and backstop options presented to diplomats on Friday would require the UK to remain aligned to EU competition, state aid, and tax rules. And, if the backstop is triggered, Northern Ireland would remain in the EU’s regulatory space for goods as a customs union alone would not guarantee frictionless trade.

Some member states, including France, had previously indicated they are not keen on having a customs union within exit arrangements because it requires detailed negotiations, and there is little time to complete these. France and other governments also insist there must be a timeline to grant EU member states continued access to UK fishing waters in either the withdrawal agreement or the political declaration that sets out the blueprint of Britain’s future trading relationship with the EU.

By securing a legally binding commitment from the UK now to align itself to EU rules alongside any customs union, and agreeing to take stock of the situation in July 2020, negotiators are hoping to have both the guarantees requested by the 27 member states, and enough time to conclude a detailed agreement.

Labour leader Jeremy Corbyn
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Labour leader Jeremy Corbyn

May has repeatedly insisted that staying in the customs union was a red line she would not cross. When Labour announced in February that it backed staying in a customs union, May attacked the policy. It would mean the UK “could not do our own trade deals and would actually betray the vote of the British people,” she said.

A senior UK official told BuzzFeed News at the time that they didn’t understand why the PM was calling membership of a customs union a “betrayal” because that was where she would end up.

Labour sources told BuzzFeed News that there was “zero chance” that the party’s front benches would support May’s Brexit deal.

Sources pointed to the fact that the deal on the table did not meet Labour’s “six tests” — the party’s red line for supporting any proposal.

Labour MPs said they were expecting some rebellion from the back benches but predicted that this would be limited to “a handful” of MPs. Party insiders said that they did not expect even Labour's staunchly pro-Brexit MPs to back May, saying that those MPs would oppose the deal on the grounds that it would keep Britain too tied to the European Union.

Cabinet and EU27 ambassadors meet today. If she can get the backing of her ministers, the prime minister is expected to hold a press conference shortly afterwards. The draft agreement, running more than 400 pages, and the outline of the future EU–UK relationship are expected to be published later this evening.

If all goes to plan, between tonight and next week, European capitals will have time to review the agreement and provide input. EU diplomats would meet on Nov. 21 to prepare for a special Brexit summit on Nov. 25 in Brussels when the 27 and the UK hope to finalise the deal.

If May can then get the agreement through parliament, EU leaders would endorse the deal at a European Council summit in December.

Alex Wickham is a senior reporter with BuzzFeed News and is based in London.

Contact Alex Wickham at alex.wickham@buzzfeed.com.

Alberto Nardelli is Europe editor for BuzzFeed News and is based in London.

Contact Alberto Nardelli at alberto.nardelli@buzzfeed.com.

Hannah Al-Othman is a political correspondent for BuzzFeed News and is based in London.

Contact Hannah Al-Othman at hannah.al-othman@buzzfeed.com.

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