Brexit Briefing 73: A way out of the backstop deadlock?

Juncker

This was the week when the pressure of Brexit finally gave and MPs from both the Labour and Conservative parties left to create a new independent group of MPs in Parliament. 

Whilst Brexit may not have been the chief cause on the Labour side, it was definitely a contributing factor as the MPs that left all want a second referendum, against the wishes of their party leadership.

Three Conservative MPs also withdrew the whip and joined the new group, they also favour a second referendum and remaining in the EU, in opposition to the Conservative leadership’s position on Brexit. 

As we enter the crucial last few weeks of Brexit negotiations, these splits were probably inevitable. Political affiliation in the country as a whole is shifting from the traditional parties to one more closely representing remain or leave positions in the referendum. 

However it is difficult to tell if these defections will affect the final Brexit outcome. On the surface they don’t change the Brexit arithmetic on Parliament. However they may have an effect on the policies of the parties they have left behind. On the Conservative side, the loss of three MPs makes the government’s position even more perilous. It still has a slim majority in Parliament thanks to the confidence and supply arrangement with the Northern Irish DUP. However this majority is now wafer thin and vulnerable. 

On the Labour side, there is the possibility of more defections until the leadership can come up with a policy which can cover both sides of the Brexit debate - i.e. both respecting the referendum result without facilitating a ‘Tory’ Brexit.

So the sands are shifting, however they are unlikely to move quickly enough to change the situation with Brexit because the UK is now only five weeks from leaving the EU, there is still no deal agreed and no natural parliamentary majority for any alternative

However the next week will be crucial. After all the previous debate and discussions it appears clear now that the most pressing concern for the government is to find a way for the Attorney General, Geoffrey Cox, to change his legal advice on the Northern Irish backstop. Currently his advice is that the UK cannot unilaterally leave the Backstop that negotiated with the EU as part of the withdrawal agreement and which aims to keep the Border open between Ireland and Northern Ireland in the event that. 

It was that advice which empowered many Conservative MPs and the Northern Irish DUP to vote against the withdrawal deal, culminating in the large defeat for the government in January. 

If the Attorney General was able to say that the UK could legally and unilaterally leave the backstop, the hope from the government is that the ERG and the DUP would then back the withdrawal deal, allowing it to pass through the parliamentary vote next week. 

AGCOX

With this in mind Geoffrey Cox (above( and Brexit Secretary Stephen Barclay were in and out of Brussels for negotiations this week. The Prime Minister later held talks with Jean-Claude Juncker, the European Commission president. She is reportedly attending an EU summit in Sharm-El Sheikh at the weekend where those negotiations changes are likely to be finalised. All of this is aimed to get agreement with the EU on changes to the withdrawal agreement that would allow the Attorney General to change his advice. 

In order to do this, he needs legally binding changes to the agreement. However the EU has ruled these out. So negotiations appear to be coalescing around accompanying protocols which would not change the agreement itself, but would possibly provide clarification and enough commitment from the EU that the legal advice in the UK could change. 

This is a tall order, to say the least. As without changes to the withdrawal agreement itself there will surely be no legal safeguard that the accompanying declarations do allow UK the ability to unilaterally leave, especially as the EU has made it clear they would never agree to give the UK that unilateral right. 

So at best it will be a fudge, as has been the case throughout this process because the UK and EU positions are mutually exclusive. Both sides can’t both get what they want at the same time. 

However, this is the only option the government has. It faces a key week next week with the Parliament ready to take control of the Brexit process if the government hasn’t got the withdrawal agreement approved. That could fundamentally alter the whole process.

The government’s approach could work nevertheless. At the time of writing there was confidence that the EU would give some written assurances that they don’t want the backstop to come into force and if it does, then only for the shortest period necessary. It is debatable whether this would really change the legal situation but it might be enough for the Attorney General to alter his advice. That in turn could allow the ERG and the DUP to vote for the deal and it could therefore get through Parliament next week.

However even if all that did happen, which is highly optimistic, there is no guarantee that all Conservative MPs would vote for the deal. There are likely to be at least 20 Conservatives who will vote against no matter what the legal advice is. The Prime Minister could rely on some labour rebels to back the deal, and they could see her over the line if the Conservative rebellion is limited. However there is no guarantee that the government would win, even in those circumstances.

This brings us back to the Labour Party and the pressing need for them to stop future defections. Their approach to anti-Semitism appears to be the biggest reason for the split however their Brexit policy has also had an impact. Most Labour MPs are pro-European and at the minimum want the closest possible relationship with Europe, many don’t want to leave at all. However Labour is acutely aware that it doesn’t want to be seen as the party that blocks Brexit and its leader Jeremy Corbyn is clearly a Brexiteer at heart.

Corbyn

The government’s other hope therefore lies in persuading the Labour leadership to support the deal. They flirted with discussions with the Labour Party in the aftermath of the loss of the first parliamentary vote, but those initial discussions petered out. 

However, the Labour leadership will need to find a way to stop future defections and as ITV correspondent Robert Peston hinted at this week, Labour may still support the deal, but the cost of its support may be a referendum on the deal. By doing so :abour might conceivably be able to keep its pro Europeans on side whilst also claiming that it is not blocking Brexit because it voted for the withdrawal deal.

These appear to be the only two paths to a parliamentary majority for the government. The first one might offer only a very small victory in Parliament, if at all. The second might force the government into a referendum on the deal, almost certainly the last thing the government and much of the country would want. 

If neither of these are viable, and it’s quite possible neither of these paths can work, we are back to the start again. Parliament is likely, by the end of the month, to take no deal off the table and tie the government’s hands in how it handles Brexit going forward. 

Yet the existing paralysis will remain. The deal will not have the necessary support, no deal will be ruled out but there is also not yet a majority in Parliament for extending article 50 to avoid no deal. 

This cannot continue and every week between now and the end of March will get more fraught as the options narrow. 

It is still impossible to see how this will end although there is now at least a potential path to the deal getting through Parliament, it just depends on the Attorney General being able to change his legal advice. The next few days will dictate if he can do that