12 March 2019

Is Theresa May’s deal dead?

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The Prime Minister claims she has secured significant concessions from the EU on the Northern Ireland backstop, that could allow MPs to support an “improved Brexit deal” in tonight’s House of Commons vote. These “legally-binding” changes are set out in three documents — an instrument expanding on the text of the original draft withdrawal agreement, a joint statement supplementing the political declaration about a future relationship and a unilateral statement by the government asserting that it can leave the backstop if negotiations break down.

At a press conference, the European Commission president, Jean-Claude Juncker, said that the instrument “complements the Withdrawal Agreement without reopening it”. He insisted that the intention of the backstop, “like with every insurance policy”, is that it should never be used.

The Prime Minister hoped that these developments would persuade Tory Brexiteers, and particularly the DUP, that she had effectively negotiated “alternative arrangements” to the original Northern Ireland protocol. On BBC Radio Ulster, the DUP’s Brexit spokesman, Sammy Wilson, emphasised “we’ve set certain criteria and all of that will go into the mix before we make our judgement.”

However, Arlene Foster later tweeted a statement claiming that “sufficient progress has not been achieved at this time” to allow her party to vote for the agreement.

The ERG, which represents Eurosceptic Conservative MPs, indicated it will take its cue from the Ulster unionists. Its chairman, Jacob Rees-Mogg, told journalists that Tories will be “heavily influenced” by the DUP. The Northern Irish party recently demanded a “treaty-level change” to the backstop. Like its ERG allies, it also wanted the attorney general to change his legal advice that the protocol would ‘endure indefinitely’ in international law.

As the day progressed, it became clear that this requirement would not be met. Geoffrey Cox’s updated opinion stated that, while the threat of becoming stuck in the backstop is reduced, “the legal risk remains unchanged that… because of intractable differences… the United Kingdom would have… no internationally lawful means of exiting the Protocol’s arrangements.”

He believes that the texts agreed by May and Juncker will be legally binding, but that the UK still has to prove bad faith on the EU’s part, if it is to leave the backstop.

The joint instrument, which is the meatiest of the three documents, stresses that the parties “do not wish to use the backstop” and that its provisions comprise a “suboptimal trading arrangement”. In effect, the EU and the UK promise to work quickly and constructively toward replacing the protocol with an alternative deal.

This pledge includes a commitment to quickly open negotiations on a ‘customs track’ that will include “consideration of comprehensive customs cooperation arrangements, facilitative arrangements and technologies.” In other words, they are re-emphasising the possibility of a hi-tech border solution that was raised in the Withdrawal Agreement.

Sceptics will ask how the UK can enforce these commitments and that is the problem to which Cox alluded in his advice. The instrument states that “a systematic refusal to take into consideration adverse proposals or interests would be incompatible with their obligations.” Another breach of these obligations would occur if either party acted, “with the objective of applying the Protocol indefinitely”.

The joint statement on the political declaration emphasises the close link between the Withdrawal Agreement and the declaration, which was not strictly speaking binding. It implies that there is a moral imperative to work toward the fulfilment of clauses on a future relationship and that this may be taken into consideration when any dispute is arbitrated. However, the requirements are still that parties negotiate in ‘good faith’ and use their ‘best endeavours’ to find a resolution.

This is a subjective test, that does not necessarily involve any expectation that the negotiators act reasonably or in a spirit of compromise. So long as the EU can claim that it is sticking to its objectives in ‘good faith’, by default the backstop can come into force and remain in place. As the attorney general observed in his advice, this may be through “no demonstrable failure of either party, but simply because of intractable differences.”

“It may be thought”, Cox wrote, “that it is highly unlikely that a satisfactory subsequent agreement to replace the Protocol will not be concluded. But as I have previously advised, that is a political judgment, which, given the mutual incentives of the parties…. I remain strongly of the view that it is right to make.”

He was guessing that an alternative arrangement could be reached, but he could offer no persuasive assurances. Yet, from the unionist perspective, even limited application of the backstop is likely to draw Northern Ireland closer to the Republic of Ireland and dilute its links to Great Britain. Every year that it operates will inflict further damage to the integrity of the United Kingdom.

The Prime Minister needed something quite extraordinary to overturn the Withdrawal Agreement’s record defeat. It now seems that the three documents unveiled this morning have failed to persuade the DUP and the ERG to support her deal. If the Brexiteers do not vote against the government they at least have reasonable grounds to abstain, because they’re being asked to consider exceptionally complex legal issues in such a limited amount of time.

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Owen Polley is a writer, commentator, consultant, and the co-author 'An Agenda for Northern Ireland After Brexit'.