The Brexit 'legal advice' is just the latest way for the deal to die

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Eric Garcia

Washington Bureau Chief

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The best way to understand Theresa May’s Brexit deal is as a reinterpretation of Erwin Schrödinger’s cat experiment for the violent video game age.

It is eight days until the parliamentary vote on it, which should, in theory, be the point at which we will find out if it has been dead or alive all along. It’s just that for several weeks it has been trapped in a small box with several hundred psychopaths and a range of fully automatic weapons.

Monday’s fun new way in which the Brexit deal may or may not have been brutally killed for around the hundredth time is via the legal advice of the attorney general Geoffrey Cox.

Since the moment May returned from Brussels, first with her withdrawal agreement and second with her political declaration, she and others have scarcely been off the television, repeating ad nauseam how the deal “delivers on the verdict of the British people, ends free movement, ends the jurisdiction of the European Court of Justice, allows the UK to strike its own free trade deals” and so on and so on.

The problem, or more accurately the most current problem, is that Labour, and others, seem to think that the government’s own lawyer might have been telling her that, according to her own agreement, that’s not exactly true.

Whether he has or not, no one outside the government officially knows. But two documents, the withdrawal agreement and the political declaration, have both been published in full. And while Cox is the government’s official lawyer, he is only a lawyer like any other. And there have been no shortage of lawyers just like him who have concluded that, no, the withdrawal agreement does not end the jurisdiction of the European Court of Justice in the UK, and the backstop agreement, which the UK may or may not enter, would severely restrict the UK’s capacity to sign its own free trade deals.

Cox has said before and will doubtless say again quite rightly that the government is entitled to confidential legal advice.

The matter at hand is a serious one. If May, and her few remaining supporters, have been advised X and are telling the country Y, that will cause no shortage of embarrassment.

On Sunday night, we are still expecting to see May and Jeremy Corbyn in some kind of head-to-head debate over the merits of her deal. It is already set to be a truly bizarre televisual experience. There is a huge campaign out there for a second referendum. It drew more than 700,000 marchers through London several weeks ago. And what they will get is the outward appearance of a mass democratic event, but without the actual vote.

That Theresa May will be making the case for a deal she knows has no chance of passing is strange enough already. Between now and then, if Labour can force into the public sphere the fact that she has been told by her own lawyer that the claims she is making do not stack up, that will be a potent weapon indeed.

But it would only mark another new and painful way for a profoundly dead cat to die again.

It does not change the central reality, which is that after inevitable defeat on 11 December, no one knows what will happen.

The Labour Party, it would appear, is inching towards support for a second referendum. After the vote on 11 December is lost, it is expected to submit a no confidence motion in the government, but it stands little chance of securing the two thirds majority it needs in the House of Commons.

After failing on that front, the parliamentary processes it might follow in order to somehow force a second referendum – a matter that can only be introduced via primary legislation, ie via the governing party – are as unclear as they’ve ever been.

The prime minister has categorically ruled one out. If her own MPs topple her, it is extraordinarily hard to see how any replacement for her would offer one. The Tories are far more electorally exposed to accusations of “Brexit betrayal” than Labour. They also need the support of the DUP.

Where this wild beast is headed, nobody knows. But we should be long past the point of counting the ways in which the deal has died.