11 March 2019

What will it take to pass the Brexit deal?

By Aarti Shankar

Brexit negotiations are going down to the wire. With just under three weeks to go until the UK’s formal exit day, UK-EU talks to deliver further protections on the Irish backstop have hit an impasse.

There was some suggestion today that the Prime Minister may not call a second meaningful vote on the deal tomorrow, amid signs the government could be heading for another three-figure defeat in parliament — although Brexit Minister Robin Walker has now confirmed it will go ahead.

It is not yet clear what that vote will look like — MPs may be asked to vote on provisional terms, based on the current deal but including some of the changes to the Irish backstop the UK government has been seeking.

The aim of this would be to demonstrate to the EU the precise changes that would be necessary to win support for the deal in the UK — in a way that the Brady amendment for “alternative arrangements” to the backstop did not. Indeed, EU officials have previously indicated the bloc would be unwilling formally to agree new concessions with the UK without clear evidence doing so would deliver Parliament.

But its not clear what provisional terms the government could put down to obtain majority support. The Brady amendment had purposely been vague, in order to act as an catch-all for the different demands of various parliamentary groupings.

If in the end tomorrow’s meaningful vote does not go ahead, Parliament is likely to be further emboldened to take the reins. Conservative MP Nick Boles, who previously proposed an amendment that would have allowed MPs greater control over the Brexit timetable, has warned that the Prime Minister “will forfeit the confidence of the House of Commons” if she fails to hold the promised votes — including on No Deal and extending Article 50 if the government’s deal is defeated.

No matter what happens tomorrow, it is looking increasingly likely Parliament will work to secure a delay to the UK’s exit.

Amid all of this political turbulence, it is easy to miss the fact that there has been some progress in negotiations with the EU. On Friday, the EU’s chief Brexit negotiator, Michel Barnier, tweeted out a series of EU commitments on the backstop. First, he confirmed the EU’s position that, under the existing agreement, an arbitration panel could allow the UK to suspend the backstop if the EU doesn’t meet its good faith commitments to negotiate alternative solutions. The Attorney General’s legal advice last year noted that this was not explicit in the Withdrawal Agreement.

Second, he agreed to “give legal force” to a January joint letter from the presidents of the European Council and Commission to the Prime Minister. This would give further legal weight to EU “best endeavours” commitments to find alternative arrangements that maintain an open Irish border and uphold North-South cooperation. But it would also introduce new binding protections on the functioning of the backstop, which could prove important to some of the deal’s key critics in Westminster.

For Unionists, it would introduce an important legal commitment from the EU that Strand II of the Good Friday Belfast commitment should be protected, and matters of North-South cooperation cannot be subsumed into the backstop or the role of the UK-EU Joint Committee.

The EU also confirmed that it would not stand in the way of the UK granting Northern Ireland representatives a role as part of its delegation in the Joint Committee, on matters affecting Northern Ireland. The UK has made a domestic commitment to refer to Northern Ireland institutions as part of its process in the backstop committees — depending on how this is drafted by the EU, it could create a further international lock on that commitment.

For those MPs concerned that the UK could become “trapped” in a customs union with the EU indefinitely under the backstop, giving legal force to the January letter would mean adding a binding commitment that “alternative arrangements” which supersede the backstop “are not required to replicate its provisions in any respect.”

This is important language, which diverges somewhat from the original statement in the Political Declaration that the future relationship should “build on” the single customs territory in the backstop. Remember, the inclusion of this commitment had been the tipping point for former Brexit Secretary Dominic Raab.

It would also mean binding the EU to ensure the backstop, if ever used, is kept in place for “as short [a period] as possible”, with high-level progress conferences every six months to “agree the appropriate actions to move forward.” As Open Europe has previously argued, introducing a firmer public review process for the backstop will help create political incentives for fast progress towards a new arrangement.

These are not negligible commitments from the EU — despite suggestions from European officials that this only repeats previous commitments, the effect of translating this into legal text creates new binding safeguards for both sides. It also comes alongside a UK-EU agreement to establish a joint workstream to evaluate alternative solutions to replace the backstop.

So why has more not been made of this in the UK?

Rather than focusing on these pledges, attention was drawn to Barnier’s suggestion that the EU would allow Great Britain a unilateral exit from the customs aspect of the backstop, while maintaining all Northern Ireland provisions to ensure an open border. This was of course not a new offer — the outcome would be a repeat of the EU’s original Northern Ireland-only backstop that Theresa May said “no Prime Minister could accept.”

That the Commission is raising this at this stage suggests a defensive mood in Brussels — likely prompted by “blame-game” statements in the UK that without compromise, “future generations… will say the EU got this wrong.” But it also risks exacerbating Unionist concerns in the UK, and making it more difficult to get a deal over the line — one of the DUP’s key concerns is that the agreement as drafted could allow a future UK government to “abandon” Northern Ireland in the backstop.

In her speech in Grimsby last week, the Prime Minister said, “The decisions that the European Union makes over the next few days will have a big impact on the outcome of the vote. European leaders tell me they worry that time is running out, and that we only have one chance to get it right. My message to them is: now is the moment for us to act.”

It is unclear whether these commitments do enough to respond to MPs concerns — they are certainly a long way off certain demands for a unilateral exit mechanism or a hard time limit. But it is also not obvious that the EU is holding back significant further concessions at this stage. If the deal faces another decisive defeat in parliament tomorrow, the ball will likely begin rolling for an extension and change of direction to a softer exit.

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Aarti Shankar is a Senior Policy Analyst at Open Europe.