By Jamie Bryson
A senior DUP source has confirmed that it is their understanding that the Prime Minister has not achieved meaningful changes to the legal text of the Withdrawal Agreement that would see the backstop removed, and therefore it is inevitable in such circumstances that the DUP will vote against the deal- regardless of clarifications or changes to the political text- being put before Parliament tomorrow night.
The source said “It is a dog’s dinner which has failed to achieve the removal of the backstop. We expect a statement from the Prime Minister tonight (Monday) or tomorrow confirming she has no treaty level changes.” Instead the Prime Minister is expected to rely upon a ‘clarification’ from the EU as the basis for Attorney General Geoffrey Cox amending his legal advice to try and sway the ERG and DUP into supporting the Withdrawal Agreement. It is also believed that there may be a change of wording to promise “best endeavours”.
It is believed that the best the Prime Minister has achieved is a joint interpretation of the ‘backstop’ rather than its removal or a unilateral exit clause. Another Leave MP said “words, words, words. Ambiguity and fudge. Not good enough” and confirmed their understanding that the Prime Minister rejected a form of joint interpretation last night.
If Tuesday’s deal was again voted down, this would then trigger another vote on Wednesday which has been represented by some commentators and journalists as representing a vote to rule out no deal. This is legally incorrect.
The date of exit from the European Union is set in domestic law by the European Union Withdrawal Act. Only statute can override statute, therefore the only way to alter this date is for a Minister of the Crown to move a statutory instrument which would have to pass the House of Commons and the House of Lords- and all inside just over two weeks.
So even if Parliament was to vote against no deal this week, this does nothing to prevent no deal. It is simply an expression of Parliament’s desire to avoid such an outcome, but it is a political rather than a legal statement. It will have no effect either way.
But what about the ‘Cooper amendment’ I hear Remainers scream; this amendment was added to a non-binding motion. It has no force in law. Therefore any Parliamentary vote on no deal is non-binding. In other words it is an opportunity for MPs to engage in shameless verbal gymnastics and martyr themselves on a commitment to avoid no deal, but actually it is meaningless.
The next step- if the non-binding vote in Parliament rules out no deal (in aspirational terms anyhow) – is for a vote on whether to request an extension to Article 50 (the instrument of EU law which dictates that the UK will leave at 11pm on 29 March 2019). For this to happen firstly permission would have to be sought from the EU 27 and presuming this was granted (it would have to happen very quickly) then a statutory instrument would again have to be moved by a Minister of the Crown and pass the House of Commons and House of Lords. All of this would have to take place in just under two weeks.
The basic legal fact is Parliament has to vote for something, in the form of a statutory instrument, and what they vote for has to be passed into law by the House of Commons and House of Lords. In the absence of this the default position is that we leave with no deal. It appears this basic fact has been lost amongst the lazy commentating and hyperbolic predications.
There are three simple questions you must ask yourself in relation to the countless plans and plots to delay or stop Brexit:
 Is a Minister of the Crown going to move a statutory instrument before Parliament?
 Is such a statutory instrument going to pass the House of Commons and House of Lords?
 Is this going to happen before the 29 March 2019?
It has always been my argument that those who want to see the democratic will of 17.4 million British people upheld simply have to run down the clock. The default position is set in law. In the absence of statute overriding statute- we leave with no deal.
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