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Stuck on the backstop?

18 Feb 19

What are the options to avoid a no-deal Brexit following the parliamentary vote mandating Theresa May to renegotiate the Irish backstop?

by Helena Raulus

The parliamentary votes of 29 January produced another set of politically significant results. It seems that while the Parliament has expressed its will that there should not be a no-deal Brexit, it also agreed that the Government and Prime Minister May should go back to Brussels to renegotiate the so-called Irish backstop. Both votes passed by a narrow majority.

The response from Europe has been, so far, that the Withdrawal Agreement (which includes the provisions on the transition, withdrawal and Irish border backstop) is not open to renegotiation. This has been communicated by the EU’s lead negotiator Michel Barnier, the Commission President Jean-Claude Juncker and the Council President Donald Tusk. Furthermore, this approach has to date been supported by the European Parliament, which has threatened to veto any Brexit deal that does not contain backstop provisions.

Furthermore, the member states and EU institutions have promised that only Ireland can decide on the adequacy of the arrangements that would be needed to prevent the hard border.

It therefore looks like the EU and the UK are heading for a clash and a possible no-deal Brexit. As no deal creates so many risks, it is now of course imperative to ensure that no-deal plans are in place and relevant precautions are taken.

However, a no-deal situation would also be highly problematic for all parties as it would lead to introduction of a “hard” Irish border by default, not to mention a broad range of other disruptions across all areas of current EU frameworks. There would be no arrangements in place to facilitate the trade in goods, services or judicial cooperation, to name only a few areas of concern. Therefore, the appropriate question at this point is: what can be done and how can the negotiations move forward?

Possible routes

The most obvious option would be to change the text of the proclamation on the future relationship. If the UK declared that it desires a closer future relationship with the EU than one based on a simple free trade agreement (FTA), such as the Norway+ option which is currently being championed by some MPs, this would remove the need to trigger the backstop as these measures would ensure that there is continued close economic cooperation.

The EU has always been very open to discuss a closer future relationship than the one envisaged in the UK Government’s white paper.

It may also be the case that the EU and the UK will stare down the cliff edge and, while the positions are very rigid at the moment, will ultimately soften their positions.

This may lead to another way to solve the situation, which could be to nominate an end date to the backstop, which would be event-based, rather than date-based (although for the moment, this option has been rejected by the EU).

This means that both parties would state their unconditional respect for the Belfast Agreement and promise to enact the measures needed to avoid a physical border, until there are new measures that can be adopted which both parties find satisfactory. This would not amount to a change in position per se, but it would be a way to save face on both sides.

Even though it looks like an impossibility now, there could also be another kind of face-saving, moderate tweak or codicil available that may make the agreement acceptable to both parties.

Extending article 50

What needs to be said at this point is that neither party (outside of certain fringe elements) has any desire for a no-deal situation to occur, as its impacts on the UK as well as many EU states, not least those closest in geography to the UK, are unpredictable and possibly chaotic.

With this in mind, both parties have already started to contemplate their plans for a possible extension of article 50. Unanimity from the member states is needed for an extension (unlike, perhaps paradoxically, a revocation of article 50, which the CJEU has confirmed the UK may do unilaterally).

In the EU, the Council has started preparations for an extension, including the drafting of plans that would deal with the coming European Parliament elections if the UK is still legally a member state at that point. At this moment we have only a confirmation that those plans exist, but not any sight of the detail.

It would be relatively straightforward to put in place an extension until the beginning of July 2019. While the elections will take place in May, the composition of the Parliament does not change until the UK formally exits the European Union. The old Parliament sits until the end of June.

If the extension were to last beyond July, then more radical interim solutions would be required. In one scenario the UK would participate in the EU elections in May. However, it may also be possible to extend the current MEPs’ mandate, or send other representatives from the UK Houses of Parliament.

The specific mechanism to be used can only be selected once there is clarity of the reason as to why an extension is needed. If an extension is needed solely for ratification of the Withdrawal Agreement, then it would not make any sense for the UK to participate in the EU elections anymore.

While over the next month we will see bruising final rounds of negotiation on the Withdrawal Agreement, with the exit date coming ever closer, this does not need to mean that no deal is the only option left on the table.

Dr Helena Raulus is head of the UK Law Societies' Joint Brussels Office

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