It was 20 minutes before MPs were due to vote on Theresa May's Brexit deal on Tuesday evening, and the Conservative MP Steve Double didn't know what to do. "I am still in a quandary. The choices before us tonight are between two wrongs, two things that I do not want to happen," he told the packed chamber of the House of Commons.
"One option – if you will excuse my language, Mr Speaker – is a turd of a deal, which has now been taken away and polished so that it is a polished turd, but it might be the best turd that we have before us. The alternative would be to stop Brexit altogether."
Double went on to vote for the deal, but his support made little difference because it was defeated by 149 votes, with 75 Conservatives rejecting it. The prime minister, who had all but lost her voice, told the House it now faced a choice between leaving the EU without a deal on March 29th and postponing Brexit.
Subsequent days showed that the prime minister had lost control not only of the House of Commons and Conservative MPs but also of her own cabinet. Four cabinet ministers defied a three-line whip to abstain on the vote on a no-deal Brexit on Wednesday but kept their jobs after a nod and a wink from one of the prime minister’s aides.
On Thursday evening, Brexit secretary Stephen Barclay closed the debate on the government's motion calling for an extension of the article 50 negotiating deadline.
“It is time for this House to act in the national interest. It is time to put forward an extension that is realistic. I commend the government motion to the House,” he said.
Then he walked into the No lobby to vote against the motion he had just commended, along with six other cabinet ministers and almost two-thirds of Conservative MPs. It was a free vote, and the motion passed comfortably with the support of Labour and other opposition MPs.
But Labour's Jess Phillips spoke for many observing proceedings in the Commons this week when she shouted across to Conservative Brexiteers during one of the votes on Wednesday: "National interest, my arse."
Government whips believe persuading the DUP to support Theresa May's deal will lead most Conservative Brexiteers to follow suit
Despite the chaos and humiliation of the past week, however, May is still in charge of the Brexit process after MPs narrowly defeated an attempt to give Parliament control of the agenda.
And her Brexit deal, twice rejected by MPs, will be back before them again next week for another go.
If the deal wins a majority, the prime minister will ask the EU to postpone Brexit by three months until June 30th to allow implementation legislation to be passed. But she has told MPs that if they reject the deal a third time, the EU will only agree to a long extension – perhaps as long as 21 months – so that Britain can come up with an alternative plan.
Some Brexiteers, including former Brexit secretary David Davis, who voted with the government this week, now believe that the alternative to backing May's deal is a long delay that could see Brexit abandoned.
Others such as Mark Francois, who served as a junior officer in the Territorial Army during the 1980s, still rule out backing the deal.
“Because it’s not a win, it’s a lose. I’m not going to back a lose. I was in the army, I wasn’t trained to lose,” he told the BBC this week.
Government whips believe that persuading the DUP to support the deal will lead most Conservative Brexiteers to follow suit, and negotiations with Nigel Dodds and other senior figures in the party will continue throughout the weekend. The government accepts that no further concessions, assurances or clarifications will be available from Brussels, so it must come up with its own inducements.
DUP leader Arlene Foster said in Washington on Thursday that her party was working hard with the British government to ensure that there would be a Brexit deal.
"The important thing is Northern Ireland is not left behind. That we leave altogether, that we have that constitutional and economic integrity for the UK. And we have long said that Stormont should play a role in this. We wanted Stormont to have a meaningful say in Brexit and we still believe that to be the case," she said.
The talks are understood to be focused on three strands: legal assurances that the backstop cannot endure indefinitely; guarantees that there will be no dynamic divergence of regulations between Northern Ireland and the rest of the UK without Stormont’s approval; and funding for projects and less well-off areas in the North.
The legal assurances are the most important and difficult element, and they require attorney general Geoffrey Cox to change the legal advice he gave about the deal last Tuesday.
Cox concluded that the assurances on the backstop May won in Strasbourg on Monday night, including a joint interpretive instrument and a unilateral British declaration, reduced the risk that Britain could be trapped indefinitely in the Northern Ireland backstop.
"However, the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the protocol's arrangements, save by agreement," he said.
Later that day, Barclay sought to beef up the attorney general's advice, telling MPs that if Britain believed the objectives of the Northern Ireland protocol – supporting peace by keeping the Border open – were no longer being proportionately served by the backstop because it was no longer protecting the Belfast Agreement in all its dimensions, it could seek to walk away from it.
"Article 62 of the Vienna convention on the law of treaties, which is reflective of the customary international law, permits the termination of a treaty in such circumstances. It would, in the Government's view, be clear in those exceptional circumstances that international law provides the United Kingdom with a right to terminate the withdrawal agreement," he said.
The Daily Telegraph reported on Friday that Cox has updated his legal advice to state that Britain will be able to end the backstop if it is having a “socially destabilising effect on Northern Ireland”, which would be considered a fundamental change of circumstances under the terms of the treaty.
But the paper said that a "star chamber" of eight eurosceptic lawyers, including Dodds, has already rejected the new advice as "clearly erroneous". They point out that the Vienna Convention allows a treaty to be terminated only if there is an unforeseen change in circumstances. And they cite a 1997 case when Slovakia sought to be released from an agreement with Hungary over a hydro-electric dam project that was signed before the collapse of the Soviet Union and the Warsaw Pact.
“Saying they are ‘exceptional’ does not make them so in the eyes of international law. Hungary undoubtedly thought there was something ‘exceptional’ about the collapse of Soviet tyranny and the liquidation of the other state party with which Hungary had concluded the treaty in question. But that was not enough,” the lawyers said.
In a paper for the centre-right think tank Policy Exchange, legal academics Guglielmo Verdirame, Stephen Laws and Richard Ekins argue that the concessions May won in Strasbourg on Monday have been underestimated. They say that the concepts of "good faith" and "best endeavours" are more powerful in international law than in commercial law and point out that the EU has been fully apprised of Britain's intention to leave the customs union and the single market.
The whips know that a hard core of perhaps a couple of dozen will vote against the deal no matter what
"The EU has accepted in the Political Declaration that the final agreement will have to 'ensure the sovereignty of the United Kingdom and the protection of its internal market' as well as respect 'the result of the 2016 referendum including with regard to the development of its independent trade policy and the ending of free movement of people between the Union and the United Kingdom'. Having assumed an obligation of best endeavours to conclude an agreement that replaces in whole the backstop, an argument to the effect that the EU would not advance any proposals other than those amounting to UK membership of the Single Market/Customs Union would create, particularly over time, a very serious risk of breach by the EU," they say.
If a combination of legal assurances, guarantees about Stormont's role under the backstop and more money for Northern Ireland are enough to persuade the DUP to back the deal, most Conservative Brexiteers in the European Research Group will follow suit.
The whips know that a hard core of perhaps a couple of dozen will vote against the deal no matter what. But they believe that some could be persuaded to change their minds if May promises to step down as prime minister in the summer. For many Brexiteers, putting a true believer in Brexit in charge of the next phase of the negotiations is crucial, and the next leader of the Conservative party is likely to come from their ranks.
The deal could just stagger over the line next week if the DUP, most Conservative Brexiteers and up to 20 Labour MPs back it. If that happens, May will go to the European Council next Thursday to seek a short extension of article 50 so that she can pass the required legislation to put the Brexit deal into action.
If the deal is rejected, the picture becomes more complicated, and EU leaders are divided over what should happen next. Some believe that any extension must still be short because they fear that Brexit will otherwise continue to be a distraction from more important issues surrounding the future of the EU.
Others argue that a long extension lasting anything between nine and 21 months is needed for Britain to resolve the political crisis that has made navigating Brexit so difficult. A long extension would give MPs time to find a cross-party consensus on the form Brexit should take, or, failing that, to hold a general election that might produce a different majority.
Some member states fear that Britain could use its continued membership to obstruct EU business
It would also offer Britain a chance to hold a second referendum that could reverse the decision to leave the EU.
A long extension raises the question of whether Britain would have to hold European Parliament elections in May. Both the European Commission and European Council legal services believe they must hold elections, although the European Parliament takes a different view.
Some member states fear that Britain could use its continued membership to obstruct EU business in an attempt to influence Brexit negotiations, and they will demand that London makes a voluntary commitment to stay out of talks on matters such as the next EU budget round.
If May's deal is rejected next week and the EU offers a long extension to article 50, MPs will have a chance on March 25th to debate other options. On the prime minister's past form, there is no reason to believe that those options would not include a fourth opportunity to approve her deal, four days before what was supposed to be Brexit Day.
