Last week’s meeting of the European Council (summit of presidents and prime ministers) confirmed that the EU does not want to reopen the withdrawal agreement. However, there is said to be willingness to offer clarification or explanation in response to the concerns expressed in the House of Commons.
The EU has done this before for member countries in difficulties with ratification of new treaties. So, for example, when Ireland voted down the Lisbon Treaty, a protocol stressing inter alia that the text did not affect Irish neutrality was agreed and the Irish subsequently voted to approve the treaty in a second referendum. It remains to be seen whether there is the same desire to help a country leaving the EU. One should not underestimate the risk of disorderly Brexit for the EU countries as well as for the UK, or their growing fatigue and disdain for the whole process and wish to concentrate on many other pressing problems. So perhaps they are sincerely keen to help.
Mr Juncker’s use of the word “nebulous” has caused a row and strengthened claims in the UK that Brussels simply doesn’t want to understand British concerns and seeks to bully the country into submission. Whatever he said and meant, the fact remains that it is unclear to most people, I suggest in Britain as much as in elsewhere in Europe, precisely what Mrs May needs to secure Parliamentary approval for her deal, other than elimination of the backstop, which is not on offer.
She stands accused by her detractors of locking the UK into commitments from which there is no escape. Some in the UK media and politics have woven this into a story of “The wicked EU has set a trap and May has walked into it.”
This is a misunderstanding of the backstop. There is unanimous desire not to use it at all. If it has to be used, it will be finite. However, it would terminate not on a particular date, but rather when it is superseded by entry into force of the long-term UK/EU trade agreement which both parties have committed their best endeavors to securing by 31 December 2020.
The backstop is what is needed to keep the Irish land border open if and as long as those best endeavors prove insufficient. It is well known that EU trade agreements take a long time to negotiate, conclude and ratify. In particular, ratification can prove laborious and accident-prone as the national parliaments of all 27 EU countries have to give their approval, as do the regional parliaments of Belgium under that country’s constitutional arrangements.
For example, the agreement between the EU and Canada, nine years in the making, has still not been ratified by all countries and so has not entered fully into force. Nevertheless, an agreement awaiting ratification can be given provisional application in respect of its parts falling under direct EU responsibility and that is the case for the Canadian agreement.
What reassurances could be given to Mrs May? Would they be likely to enable her to carry the day in the House of Commons?
When is a backstop not a backstop?
She cannot have a precise date for the end of the backstop, because it depends on another event the date which cannot be predicted. A backstop which expires on a given date is not a backstop. The EU side is sincere in saying that it wants to get on with negotiating the long-term relationship agreement, but it will not want to be pinned down to a date for its entry into force. It can reiterate its strong desire and commitment to use its best endeavors to find agreement and therefore terminate the backstop as soon as possible. It can add that technological solutions obviating the need for any hard border between Ireland and Northern Ireland will be studied and considered as a matter of urgency.
The irony of the current situation is that the extension of the backstop from Northern Ireland to the whole of the United Kingdom was a response to a British request to avoid differentiation between the constituent parts of the United Kingdom and a border in the Irish Sea.
The EU could therefore also reiterate in strong terms its commitment to the UK’s territorial integrity and its desire to terminate the backstop as soon as possible. Would a protocol to this effect attached to the withdrawal agreement be enough without a firm date? Would it help to make it a “Decision of the Heads of State or Government, meeting within the European Council”, a legal form enabling the British Government to register it as an international agreement in the UN depositary of multilateral treaties in New York?
That is a judgement for the British Government and ultimately Parliament to make. European leaders will be watching developments closely, noting the European Court of Justice’s ruling that Article 50 can be revoked unilaterally and loud voices advocating another referendum or Norway plus customs union. But they may also consider that Mrs May is the best interlocutor they are likely to have for the conclusion of the Brexit talks. One should not underestimate the desire elsewhere in Europe to move on. There are burning issues awaiting attention in many countries and 2019 is an important year of elections and new institutional leadership in Brussels and Frankfurt. If Mrs May secures a helpful clarification, she may find that the House of Commons is in a more receptive mood at the second time of asking. On the other hand, the shadow of Neville Chamberlain hangs over British Prime Ministers returning from abroad with promises easily caricatured as worthless.
If she is convinced that it would win the day in the House of Commons, the Prime Minister could ask the EU to agree in a binding decision that the free trade agreement’s provisions falling under the EU’s sole “competence” shall enter into force provisionally once the EU institutions complete their ratification (without waiting for member states’ approvals for their bits) and that EU ratification and subsequent provisional entry into force bring the backstop to an end.
Sir Jonathan Faull is a Brunswick Partner and Chairman of European Public Affairs, having been with the European Commission previously. Jonathan’s most recent roles at the Commission included Director-General Financial Stability, Financial Services and Capital Markets Union, as well as Director-General of the Task Force for strategic issues related to the UK Referendum. These notes are his personal views.