Theresa May at bay threw down one effective challenge to the massed ranks of her critics. “Come clean: do you want Brexit or not? “No”, chorused the SNP and she rolled her eyes. For as long as Parliament cannot settle on an agreed alternative she holds a narrow initiative. In the kingdom of the blind, the one-eyed woman is queen.
In her whistle -stop tour of continental capitals, her ploy now is to seek “reassurances”, a time honoured feature of EU negotiations under pressure. Among them is approval for her proposal to recast the backstop as a more democratic default. Underneath her appeal but just blow the surface lurks the threat of No Deal. If this is bluff, it may well be called. In fact her proposals seem modest. In the event of failure to agree a final deal by the end of 2020, both Westminster and the European Parliament would vote on triggering it to tie the whole UK to a customs arrangement and Northern Ireland only to the single market as well. But what would happen if the European Parliament voted to approve and Westminster to refuse?
It may be significant that she is not taking in Dublin on her tour. Some at Westminster claim they hold the key, but it is a hard to see what of substance they will say. Even with anxiety mounting in Dublin over a No Deal Brexit, Simon Coveney is talking about a letter of reassurance, no movement on the backstop itself. Political jostling aside, it would greatly help clarify the policy alternatives if a joint UK/EU team was to scope ideas for a backstop alternative. This is an obvious task for the British and Irish working together, but there’s no sign of it I can see.
As another reassurance, the Irish Times’ Patrick Smyth instances the role of arbitration described in the Irish protocol in the withdrawal agreement.
The treaty provides that should one party, either the EU or UK, feel that the time has come to quit the backstop – when another agreement has been reached that does its job of protecting the frictionless border – it can apply to do so to the Joint Committee set up to manage the Northern Ireland protocol implementation.
Should the joint committee, which has equal representation from the UK and the EU, fail to agree, the issue goes to binding independent arbitration.
The treaty makes clear that by law, the arbitrators would only be able to consider two grounds for granting or denying the request – that the parties had genuinely been negotiating an alternative in good faith, and, to quote the British legal opinion, whether the party applying to end the backstop “had acted lawfully in reaching a view about whether the protocol was necessary to achieve its objectives”.
While certainly not a unilateral right to withdraw from the backstop, the provision does ensure that an unreasonable veto by a member state or the EU itself, either in setting the bar too high or prevaricating in talks, would not be able to “trap” the UK in a backstop or customs union. The absence of a fishing agreement would certainly not be grounds acceptable to arbitrators.
A “reassurance” declaration at this week’s summit by the 27 emphasising the role of and independence of arbitrators and of the scope of their mandate in any review of the backstop, could help to clarify the treaty provisions, without changing them, and should be able to answer the “held hostage” fears of at least some of Mrs May’s critics.
Downing St is instancing the Ukraine precedent of reassurances offered at the last minute. Sources point to a declaration to secure the ratification in the Netherlands of the EU-Ukraine Association Agreement, which had been rejected by voters in a non-binding referendum.
In December 2016, EU leaders agreed a declaration spelling out that agreement did not guarantee EU membership to Ukraine, and that the Netherlands was not obliged to provide Ukraine with military assistance.
Well yes, indeed, it all sounds like clutching at straws. It is now confirmed that Mrs May will hold the meaningful vote before 21 January and that it will continue to be amendable by moving alternatives such as Norway plus or preparations for a second referendum. She may even anticipate the continuing imminence of massive defeat by unveiling Plan B herself , probably Norway plus, for a new meaningful vote. But who knows? Perhaps not even herself.
If these tactics are intended to forestall a vote of confidence moved by Labour, they may yet fail, as negotiations for EFTA membership would still require a backstop. A motion to consider a second referendum would probably fair even worse. The survival of the backstop means the DUP would join the combined opposition and make up the numbers required to topple the government and hold an election unless the government could win fresh majority support within 14 days of the vote.
In a subtler move, Brexiteers are considering a vote of no confidence in the Brexit policy, not the government. This they believe could force the prime minister’s resignation, followed by a shortened leadership election, without bringing the government down.
Even this grim scenario could be interrupted by Brexiteer Conservatives reaching the quota of 48 required for a leadership election. It might or might not be delayed in the unlikely event of all cabinet members pledging not to contest it and get behind Theresa May. But that would only clear the way for Boris, or another cabinet resignee such as Dominic Raab or Esther McVey, all of whom are unlikely to be able to unite the party – ( perhaps with a query over Raab’s name). More likely she would be regarded as having run out of all her options. Cabinet members would probably escape serious taint by association with May as throughout they were remarkably passive and reactive throughout, when they didn’t actually resign.
.The best available option now is to extend Article 50, to allow more time for new choices of personnel and policy to be sorted out.
It’s now clear that the government could simply withdraw Article 50 and call the whole thing off. Sweet thought.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London