EXPLAINED: What did Theresa May win from the EU last night and what does it mean?
6 min read
Wondering what Theresa May agreed with Brussels last night and what it all means for Brexit? PoliticsHome is here to help.
WHAT HAPPENED LAST NIGHT?
Theresa May jumped on her plane and flew to Strasbourg last night after an agonising day of will-she, won’t-she speculation on Brexit. The PM has been scrambling for weeks to secure changes to the controversial ‘backstop’ plan to keep the Northern Irish border open in the event of a no-deal Brexit. The arrangement - which critics fear could leave the UK tied to EU rules permanently - saw her deal defeated in the Commons by 230 votes in January.
She was sent back to the negotiating table to win legal guarantees that the UK would not end up locked in the mechanism - and at around 10 o’clock last night she secured a breakthrough.
As the PM sat alongside European Commission boss Jean-Claude Juncker at a Strasbourg press conference, she explained that three new documents were being published that would deliver the “legally binding” changes MPs wanted. She said the agreements secured “very clearly that the backstop cannot be indefinite - cannot become permanent. It is only temporary”.
Juncker meanwhile hailed the "improved" agreement and warned Brexiteer MPs: "Let us be crystal clear about the choice - it is this deal or Brexit might not happen at all."
WHAT IS THE DETAIL?
The three documents include a ‘joint interpretative instrument’ and ‘joint statement’ - both agreed between the UK and EU - and a ‘unilateral declaration’ drawn up by Britain alone.
Joint Interpretative Instrument: The document gives legal force to a letters sent by Juncker and European Council president Donald Tusk in January that said the backstop would not be a permanent solution. It would allow the UK to trigger an arbitration mechanism if it thinks the EU is trying to keep the backstop going indefinitely. That mechanism could see the arrangement suspended. A key element is that the arbitration mechanism would no longer refer to the European Court of Justice. The document has equal legal weight to the Withdrawal Agreement - something pro-Brexit MPs were demanding - and for added prestige will be filed with the UN in Geneva.
Joint Statement: This one refers to the so-called ‘future partnership’ document which lays out the hopes for the relationship between the UK and EU going forward. It says the two sides must work to secure “alternative arrangements” to the backstop in good faith during the Brexit transition period which ends in December 2020. The statement sets out commitments to speed up that planning process and set up a “specific negotiating track” for the alternative arrangements from the start of the next phase of talks. The plan is for technological solutions to replace the need for infrastructure along the Northern Irish border - something pro-Brexit MPs have long asked for.
Unilateral Declaration: The document by the UK government alone sets out a commitment to prevent the backstop becoming a permanent measure. It says if negotiations on a replacement mechanism break down the UK will have the power to start the process of replacing the backstop itself, as long as it respects the 1998 Good Friday Agreement.
WHAT DOES IT MEAN?
In terms of content the documents offer not a lot more than had been agreed in the past - but their existence gives them an extra legal bite that might be enough for MPs who voted against the deal last time. Shadow Brexit Secretary Keir Starmer noted that the language from Theresa May herself has shifted only slightly - from the previous agreements having “legal force” around the backstop before last night to being “legally binding” now.
Peter Foster, the Europe editor of the Telegraph, argues that the arbitration mechanism - although not a unilateral exit or a time limit - “does open the door to arguing that the backstop cannot legally be a trap, since the EU have implicitly agreed to UK right to trigger the exit process over time”. He also notes that its decisions would be binding on the EU.
Open Europe director Henry Newman argues that commitments in the Withdrawal Agreement which already allowed the UK an exit from backstop have been firmed up in the new documents. “What was needed was greater surety about how that exit could come into effect. That's what changes seek to do,” he said on Twitter. “This package substantially improves the UK position including by building on commitments which were already in text in various ways but needed strengthening.”
David Anderson QC - the former reviewer of terror legislation - has teamed up with two other legal experts to produce a verdict for the anti-Brexit People’s Vote campaign. The analysis says the new measures do not allow the UK to exit the backstop without the agreement of the EU. They add: “The furthest they go is to reiterate the possibility that the backstop might be suspended in extreme circumstances of bad faith on the part of the EU, which are highly unlikely to be demonstrated.”
In short - the debate is wide open.
WILL IT MAKE ANY DIFFERENCE?
All that matters now is numbers in the House of Commons when the vote takes place tonight. The key thing is whether or not the new agreements win the support of MPs - especially Tory MPs and the DUP - who previously voted against the Brexit deal in January. Some will no-doubt vote against the deal no matter what, but there will likely be at least a few who are swayed - if only by the fact that the clock is ticking down and too much is at risk if it is defeated again.
Former Brexit Secretary David Davis was on LBC Radio this morning lauding the new measures and saying he will back it and it could pass if Attorney General Geoffrey Cox gives it his blessing. MPs from the hardcore pro-Brexit European Research Group are meanwhile taking soundings from their own panel of legal experts, which will again be decisive on who swings which way in the end. The chances are not looking good for Theresa May, but there is still everything to play for.
WHAT COMES NEXT?
Geoffrey Cox is due to give an oral statement to the House at around 12.30 and the ERG panel should also publish its verdict soon. Theresa May is meanwhile addressing Tory MPs in Parliament at 11.30 for a last-ditch bid to plead for their support, before she takes to the floor of the Commons in the early afternoon. Brexit Secretary Stephen Barclay meanwhile is up before the Exiting the European Union Committee at 11.15. The votes in the Commons on the new deal and any amendments will begin at some point after 19.00.
Big final note: Some pro-Brexit MPs - as well as DUP leader Arlene Foster - are suggesting a 24-hour delay so the vote can be held tomorrow would be preferable. It seems unlikely that will happen - but there are many moving parts and a delay could well be on the cards.
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