There are three curiousities about the group of eight pro-Brexit lawyers who will pass judgement on any revised deal.
First, while seven of them are Conservatives (of which six are MPs), one is a member of the DUP – Nigel Dodds. The Tories have an common interest, as well as their party membership: they are all aligned to one degree or another with the ERG. Meanwhile, Dodds is not only a DUP but the party’s deputy leader. The ERG and the DUP have very good relations, but ultimately different interests. And Dodds will have a responsibility to his party’s view if or when a revised deal is agreed.
Second, at least two of the group are opposed to the deal as it stands on wider grounds than the backstop. Bill Cash has broad objections – for example, to Article 4 of the Withdrawal Agreement. On its basis alone, he told the Commons recently, “one should not vote for the withdrawal agreement”. Martin Howe’s take is similar. David Jones is at the flintier end of the ERG spectrum. With so much opposition to the deal in the group – and resistance that spreads wider than the backstop – how can it collectively approve any backstop revision?
Finally, Howe, who writes on this site today, has a long history of engagement with EU law. (His chambers says that his practice “encompasses intellectual property and extends into wider fields of EU law and commercial and public law”.) Cash has been immersed in EU law as an MP for over 30 years. Raab had some engagement with EU law as a junior solicitor and is of course a former Brexit Secretary. Now let us turn to the remaining five members of the group of eight.
- Jones is a solicitor who was senior partner of a practice (David Jones & Company) based in North Wales.
- Suella Braverman is a barrister who specialised in planning law.
- Robert Courts’ chambers says that he has “a general common law practice, principally in the fields of criminal and personal especially Animal Welfare, Aviation, Police and Proceeds of Crime Law”.
- Michael Tomlinson’s is a member of the same chambers, which advertises his work in “contract, landlord and tenant, personal injury, property and chancery, public law & regulatory law”.
- Dodds worked as a barrister in Northern Ireland. (It may be worth noting that he “won the university scholarship, McMahan studentship and Winfield Prize for Law”.
In other words, perhaps two of the eight can claim to have serious engagement with constitutional law – Howe and Cash. But the latter is primarily a politician. As are the remaining six: Jones, for example, may not have been a senior lawyer but he was certainly a senior politician – at one time a member of that most senior political body of all, the Cabinet.
All in all, this group of eight is constituted to take what will primarily be a political rather than a legal decision. The same is true of Geoffrey Cox – who his chambers describes as appearing “in the High Court in civil fraud and asset recovery, commercial, human rights, defamation, and judicial review actions”.
Tomlinson gave a skilful interview to yesterday’s Sunday Times in which he succeeded in not closing down any options. But the combination of Howe’s, Cash’s and Jones’ presence in the group of eight, and the absence of any visible breakthrough in the negotiations, should caution one against presuming that it is predisposed to sign up to any revised deal that the Government brings back. Especially in the light of claims today about the state of the negotiation.