The European Union does not want ‘no-deal’. Neither do the majority of people or politicians in the UK. Most of us recognise that to leave without a deal would be potentially damaging to both the UK and the EU, a risk to be avoided.
But unless Brexit is stopped altogether the only way to prevent ‘no deal’ is to agree a deal. The date of the UK’s departure may now be delayed, but even a short delay would be controversial enough. And delay will only postpone the choice which, sooner or later, must be made.
In one sense a deal is tantalisingly close to being agreed. Despite initially rejecting the Withdrawal Agreement by a substantial majority, the House of Commons has now voted to accept the deal provided that its concern about the Northern Ireland backstop is addressed.
The EU is understandably irritated that, after the deal was agreed, Theresa May now seeks to revisit the backstop issue. But as a new Open Europe briefing note which is published today shows, there is persuasive precedent for such a course of action. The EU has been willing to clarify treaties for Member States which were unable to ratify them – and one of those countries was Ireland.
A protocol was added to the Lisbon Treaty after Irish voters initially rejected it in a referendum. A ‘Joint Interpretative Instrument’ to the EU-Canada trade deal (CETA) overcame the opposition of Belgium’s regional parliament in Wallonia. A Dutch addendum to the EU-Ukraine association agreement was negotiated after Dutch voters expressed opposition to the agreement in a referendum. And the Edinburgh Agreement paved the way for Denmark to ratify the Maastricht Treaty after their voters had initially rejected it in a referendum. These changes did not alter the Maastricht Treaty itself; rather, they altered its effect in Denmark.
It has been said that in these previous instances the EU was seeking to address the concerns of a Member State, while the UK is leaving and will become a Third Country. But the UK is still a Member State. The same fundamentals apply: an agreement struck by political leaders needs to be adjusted as a consequence of a democratic decision, and the greater good is served by making the change to get the deal done.
It makes no difference at all that in some of the examples Open Europe cites the obstacle was thrown up by Member States’ electorates, while in the UK’s case the objection has been made by its elected representatives. In both cases the concerns have democratic legitimacy and must be addressed. That is what ratification means.
Some have suggested that the guarantees which the House of Commons seeks, in particular to ensure that the backstop will only be temporary, can only be achieved by re-opening the Withdrawal Agreement itself. The EU has been unwilling to do this, and it might not be in the UK’s interests, either, since Member States could use the opportunity to revisit concerns over other issues, such as Gibraltar or fishing rights. But as this briefing shows, it is possible to clarify the effect of an EU treaty by way of a legally-binding protocol.
It would be a terrible irony if the deal were to founder on the sole issue of the backstop when the immediate impact of no-deal would require alternative Irish border arrangements. The backstop could only subsist temporarily under EU law anyway. It would be perverse to refuse to acknowledge this legal truth in a clarification that would reassure the UK Parliament and get the deal over the line.
With only a month left before the UK is due to leave, it is in everyone’s interests to compromise. A majority of the UK’s MPs have already set aside other concerns about the deal to indicate their conditional support for it. The EU should move, too, as they have done before.
Until now the EU might have been banking on Brexit being stopped. But despite Jeremy Corbyn’s move towards a second referendum, there is no apparent majority for this in the House of Commons. The UK is still set to leave the EU, whether on 29 March or later. The question is whether our departure will be orderly or chaotic. Time is increasingly tight, but the prize of securing a deal, and avoiding no-deal, is still within reach.