Melanie Phillips: Glad, confident morning for Britain’s battling Brexiteers? Er, not quite

Suddenly Brexit has become possible, coo the newspapers this morning; and suddenly, this Brexiteer’s heart stops for the umpteenth time during this national crisis. 

For what they are saying has now suddenly become possible is not Brexit — which, after all, Britain’s new prime minister, Boris Johnson, has been intoning like a stuck record will happen on October 31 even with no deal – but Brexit with a withdrawal deal with the EU.

And that’s because the German Chancellor, Angela Merkel, has given Boris Johnson thirty days to come up with an alternative to the Irish backstop, which Johnson says is eminently doable. Which is where the heart stops. Because that may signal another imminent version of Brexit-in-name-only.

Regular readers of this blog will know that from the start I have been sceptical of Johnson’s intention of delivering a clean Break with the EU, “do or die”.

That’s because, despite his bellicose rhetoric hammering home that if necessary he will take the UK out of the EU without a withdrawal deal, he has also said throughout that he is confident of striking a new deal. Most alarmingly, he has consistently identified only the Irish backstop as the obstacle to Mrs May’s previous deal. And indeed, the supposed ray of hope after yesterday’s meeting with Mrs Merkel only concerns the possibility of reaching an agreement on the backstop issue.

But the backstop isn’t the only obstacle at all. It is certainly the most intolerable, since it would trap the UK in the clutches of the EU through a customs union with no possibility of unilateral withdrawal. But the rest of the May deal was also unacceptable, as it would also have left the UK in thrall to the EU through its Political Declaration.

As the lawyers Martin Howe QC, Sir Richard Aikens and Thomas Grant have argued in this pamphlet, the Political Declaration – which is legally binding – would leave the UK subject to European laws and rulings by the European Court of Justice in perpetuity. They write:

“Even in the wholly unlikely event that the EU were to agree to remove the whole backstop Protocol from the WA, the rest of the WA would still contain serious constraints on the UK and little or nothing of value. For example: (a) Its ‘long tail’ jurisdiction would lead to UK companies being subjected to State aid or competition proceedings for many years after the UK had left the EU and after the transition period; (b) It contains an obscure clause on ‘geographical indications’ which would severely disrupt future trade negotiations with other countries”.

So in the still unlikely event that the backstop was neutralised as an issue, would Johnson agree as a quid pro quo to terms which would leave the UK somehow remaining tied to the EU – and try to pass that off as Brexit?

These concerns were articulated in yesterday’s Telegraph by Nigel Farage, who became alarmed by what Johnson did and didn’t say in his four-page letter to EU Council President Donald Tusk.

Farage wrote:

“In his letter, Johnson says securing a ‘deal’ is his ‘highest priority’. Rather than leaving the EU on October 31, it looks as though Johnson wants Britain to enter into a transition period on that day. This, for him, is his ‘highest priority’…Johnson implies that if the backstop was removed in its current form, the Withdrawal Agreement would pass through the House of Commons with his support.

“…Now that the EU sees the real Boris Johnson, it might just agree to a reworking of the Withdrawal Agreement. Tellingly, in Donald Tusk’s response, he says that the backstop must stay in place ‘unless and until’ an alternative is found.

“This is so far the softest language I have heard from Brussels. If Johnson and the EU were able to produce a new Withdrawal Agreement, it is not yet certain that Parliament would pass this as amended. But if it did pass, it would be the very worst form of Brexit for everybody – BRINO (Brexit In Name Only). It would lead to years of acrimony with the EU.

“…I truly hope that Johnson’s letter to Tusk is just part of him being seen to go through the motions, while really wanting a clean-break Brexit on October 31. I would cheer from the rooftops louder than anybody if he secured Britain’s independence.But when I read his letter, and Tusk’s response, my first sense was one of fear that a great stitch-up may be coming. That feeling has not gone away”.

In today’s Telegraph, such concerns have been pooh-poohed by Allister Heath.

Farage, he writes, was merely trying to keep up the pressure on Johnson.

“But whether Europe’s nomenklatura climbs down or not, at some point soon, perhaps in a few weeks’ time, even the most cynical will have to concede that Boris is planning to deliver the clean Brexit he has promised…

“To those Brexiteers who disagree, I ask this: look at the facts. I still can not believe just how pro-Brexit this government actually is. It is breathtaking. Johnson/Cummings are the real thing, as are Dominic Raab, Priti Patel and all the other Brexiteers in positions of power. Sajid Javid is preparing a Budget that will blow the socks off the economy and will be the most important since Nigel Lawson’s 1986 masterpiece. The no-deal preparations are substantial and sincere.

“Johnson’s letter to Donald Tusk contained two central points. The first is that the PM rejects the backstop, the most pathetic, preposterous treaty clause any British government has ever proposed signing.

“The second, equally powerful, has been overlooked. We will not merely be leaving the single market and customs union but will be setting our own laws and taxes. It’s worth quoting Johnson at length: ‘Although we will remain committed to world-class environment, product and labour standards, the laws and regulations to deliver them will potentially diverge from those of the EU. That is the point of our exit and our ability to enable this is central to our future democracy.’

“…Boris’s letter is incompatible with the political declaration… It is therefore absurd in the extreme to depict Johnson as Theresa May 2.0, as some deluded commentators have begun to. Such an ‘analysis’ is entirely devoid of understanding”.

Powerful arguments indeed. And yes, it’s hard to believe that Johnson would attempt a stitch-up, given all he has said about the fatal damage that would be inflicted upon the Conservative party if Brexit isn’t delivered on October 31.

And yet and yet… if you believe that the EU will never climb down sufficiently to agree a withdrawal deal that doesn’t somehow cripple UK independence, then what kind of deal could Johnson pull off that avoids being a Brexit sleight-of-hand? Why does his letter to Tusk focus on the backstop alone as the impediment to a deal rather than mentioning the Political Declaration too?

Maybe the belligerent hostility of the French president Emmanuel Macron will prove the saving of British independence. Or maybe Boris Johnson actually means what he has been trumpeting for the past few weeks about “do or die”.

But personally, I won’t trust that the UK really will escape the EU’s clutches until a clean, unequivocal Brexit has actually happened.

Melanie Phillips is a British journalist, broadcaster and author - you can follow her work on her website HERE.