May’s last-minute gamble to secure Brexit deal

Michel Barnier, the European Union’s chief Brexit negotiator, welcomed British Prime Minister Theresa May in Strasbourg, France, on March 11. (Reuters/Vincent Kessler/Pool)

British Prime Minister Theresa May’s late-night trip to the European Parliament in Strasbourg, France, on March 11 has secured “legally binding changes” to her Withdrawal Agreement with the European Union, which May believes can pass a vote in Parliament on March 12.

May and European Commission President Jean-Claude Juncker announced three new provisions to the Withdrawal Agreement at a press conference just before midnight on March 11—a day before members of Parliament in London are to vote on the deal.

May said British Attorney General Geoffrey Cox would send a report to MPs on March 12 about the legal ramifications of all the new provisions before a “meaningful vote” on the deal later that day.

Juncker warned that while this was a “second chance” for the United Kingdom to pass the Withdrawal Agreement, “there will be no third chance.” May lost the first vote on her deal by more than 200 votes on January 15. In comments addressed to hardline Brexiteers, he cautioned, “it is this deal or Brexit might not happen at all.”

The changes agreed by May and Juncker focused on the “backstop” provision, which would preserve an open border between Northern Ireland and the Republic of Ireland by requiring the United Kingdom to remain in compliance with the EU’s customs policy.

May described the backstop as an “insurance policy” that “cannot be a permanent arrangement and it is not the template for our future relationship.” Pro-Brexit members of Parliament from May’s Conservative Party and the Northern Irish Democratic Unionist Party (DUP)—the prime minister’s allies in Parliament—have been concerned that the backstop could permanently keep the United Kingdom subject to EU rules if both sides do not agree to a free-trade agreement after Brexit.

Juncker echoed May’s statement, saying that “the backstop is an insurance policy, nothing more, nothing less.”

May and Juncker agreed to a “joint instrument” to be added to the Withdrawal Agreement. This, May explained, would “guarantee that the EU cannot act with the intent of applying the backstop indefinitely. If they do, it can be challenged in arbitration,” and possibly result in the United Kingdom unilaterally withdrawing from the backstop provision.

There is also a new political declaration between the EU and the United Kingdom, which May said would outline a commitment by both sides to negotiate “alternative arrangements,” potentially including use of new technology, to create an alternative to the backstop that would preserve a hard border. May also said the British government would put forth a unilateral declaration laying out its interpretation that the United Kingdom can withdraw from the backstop should there be “no prospect” of a permanent agreement on the EU-UK relationship.

Experts react to the latest version of Prime Minister Theresa May’s deal and on the prospects for the vote in Parliament on March 12:

Peter Westmacott, a distinguished ambassadorial fellow at the Atlantic Council and a former UK ambassador to the United States: “Hours before a vote in the UK Parliament on her EU withdrawal package, Prime Minister Theresa May made a last-minute dash  to Strasbourg on Monday night for talks with EU Commission president Jean-Claude Juncker on ways to make her package more attractive to lawmakers. Last month the same package  was rejected by a massive majority of 230 votes.

“At the end of the meeting with Juncker, May announced that she had secured legally-binding language “reducing the risk” of the UK being indefinitely tied to the Irish border ‘backstop,’ should it be needed to ensure that the border between the UK and the Irish Republic remained open.

“MPs will be poring over the new language to see if it allows them after all to support her deal. Key to the process will be the judgement of the Attorney General on whether the new language, and an accompanying unilateral UK statement, allows him to change his earlier view that there was no certainty that the UK would not be indefinitely locked into the backstop.

“Before her visit to Strasbourg, there was a widespread expectation that MPs would again reject May’s deal on Tuesday. If it is now accepted, the UK will leave the EU on schedule on March 29 on the basis of her deal.

“If not, rejection of May’s package will trigger two further votes – the first on rejecting the possibility of leaving the EU on March 29 with no deal, and, if that passes, a second instructing the government to request an extension of the March 29 deadline to give it more time to find a way forward.

“Even ministers who are opposed to no deal worry that the EU might set unacceptable conditions for an extension, so a vote for delay would not necessarily stop the country leaving without a deal, by default, at the end of the month.

“A great deal is therefore at stake in the House of Commons on Tuesday evening when MPs vote on the prime minister’s package, the content unchanged but now with new, legally-binding complementary language. Is it enough? We will know tomorrow.”

Andrew Marshall, vice president for communications at the Atlantic Council: “There is a chance that this will be the moment when the splintered factions of Britain’s increasingly divided parties come together to agree a deal. It doesn’t have to be a great leap to achieve that — it is more a matter of timing, self-interest, and political exhaustion. It will not end the conflict over this issue, but it would permit the British to finally start to map out what comes next.

“The verdict will be delivered by the Brexiteers within the Conservative Party, the Northern Irish DUP, and to a lesser degree the opposition Labour Party’s Brexit wing. By having the deal come so late, Mrs May minimizes the time for conspiracy and media carping overnight. This is a political gambit in legal clothing, and she has a shot at success. But her time is running short.”

Richard Chew served as a special adviser to British Prime Ministers David Cameron and Theresa May between 2015 and 2019: “It was a late night of negotiations in Strasbourg, but it will be the morning after the night before when we really find out what happens.

“The British government secured changes to the backstop, aimed at addressing concerns of the Northern Irish Democratic Unionist Party (DUP) and Conservative MPs.

“On Monday night, most MPs were reserving judgment about whether these changes are enough to get their support — waiting to look at the details and hear the attorney general’s legal view on the changes.

“To understand what happens next: look for the DUP response. Their position is key.

“If they back the changed deal, the United Kingdom moves a lot closer to leaving the EU with this deal. The government will likely still lose the meaningful vote on Tuesday evening, but by a lower number than in January, as DUP support will bring more Conservative votes with them.

“Parliament would then likely vote against leaving without a deal, and for an Article 50 extension. That would give the government a bit more time, and a smaller number of MPs to peel off, to eventually get the deal through.

“Without DUP support, the ‘no majority for anything’ position continues.  The government would then need to try to find an approach that could command a majority in the House. (If the vote loses by a similar number as it did in January, it is likely Labour would seek another confidence vote.)

“If it continues with the approach it has taken so far, it would seek further tweaks ahead of the March European Council (regardless of the fact that Jean-Claude Juncker dismissed this option on March 11). If the government made a more radical change of position, it would risk Cabinet resignations and losing a confidence vote.

“Whatever happens, the choice for MPs of deal, no deal, or no Brexit is the same. But by the end of Tuesday, we will know if the United Kingdom has taken a step toward leaving the EU with or without a deal, or a step deeper into political crisis.”

Chances for a No-Deal Brexit?

Westmacott: Anybody who thinks they know what’s going to happen over the next days and weeks here in the UK on the Brexit negotiations is either an extraordinary psychic predictor of the future or a liar. So the picture is really very uncertain.

“There is a pretty wide sense in Brussels and in the British Parliament — and probably amongst public opinion more generally — that crashing out with no-deal is not in anybody’s interests, except that of a few hardline Brexiteers who want to have a complete break with the European Union and start afresh. It’s very, very last minute to try and do that and frankly… nobody has made the necessary preparations.

“There is a widespread expectation that [British] members of Parliament will not accept… there being no deal. The prime minister wants to keep the no-deal option on the table because she and some of her allies think that it improves her negotiating leverage with the European Commission in Brussels. But she was forced to offer members of Parliament a vote [on no deal] because most people think that no-deal Brexit is a very bad idea. So if that vote goes ahead, the chances are that it would [throw out] the option of no-deal Brexit. Then that raises the question of, well, if there’s no no-deal Brexit and nobody wants Mrs. May’s package, which will have been voted down on the day before, then what happens?”

Will Brexit be delayed?

Westmacott: “The [British] government… [doesn’t] really want to seek a delay. The prime minister’s been clear about this. But if they do, they will want the shortest possible delay of a couple of months or so… partly to keep the Brexiteer wing of the Conservative Party happy and partly because if you have a longer delay, there are several complications, including the fact that there are European parliamentary elections due in May and what happens to the British representatives.

“Do we not take part in those elections?  If so, how long do those people remain members of the European Parliament?  What happens to various budgetary and other decisions that need to be taken in Brussels and Strasbourg in the coming months?

“It is [also] possible that if the British government says we need the delay, we want more time please, that the European side will say well, OK, but what’s it for? Is it because you want to have a different approach, you want to have a Norway solution or Canada solution, or you want time to hold another referendum to see if you want to leave the European Union after all or not?

“And the chances are… that if the European side does agree to an extension of deadline, that there will be certain conditions attached to agreement, including continuing payment of the budgetary contributions, possibly excluding the United Kingdom from having a seat at the table while decisions are taken, and something about the European parliamentary elections. All those various conditions could be problematic for the British Parliament… May’s deal being voted down, the British Parliament having voted against crashing out with no deal, but no real agreement on an extension of the deadline beyond the 29th of March.”

Benjamin Haddad, director of the Atlantic Council’s Future Europe Initiative: “I think the EU will first wait for what’s going to unfold in the next few days politically in the UK. There is a general sense that a no deal will have to be avoided.

“No one wants to crash into Brexit, so my sense is that there will be, obviously, openness to an extension, but at the same time the EU will demand some clarification from the UK on whether that means that it will change some of its positions or that it will go to a second referendum. The EU leaders have been united—including the Dutch [who] were much more sympathetic I think to the UK position last year—that the deal is on the table and there’s not going to be more flexibility in the next six months if [the UK] asks for an extension.

“There might be some hope on the UK side that after the European elections [in May] there might be more wiggle room or flexibility on the EU side. But once again I think it’s a gamble that has been made for the last few years that’s failed so far. And I don’t see it happening… There is clearly an eagerness to avoid a no-deal situation, so I think there will be flexibility on the EU side [for an] the extension. But it will pressure the UK into giving some sort of clarity over why it is asking for it and what it’s trying to achieve.”

Future for Theresa May?

Westmacott: “The expectation amongst politicians and the media here in London is that the Theresa May package will go down to a pretty large defeat. That is not a good position for the prime minister to be in. There is even some talk that her position will become untenable, but I think she will remain prime minister, for the time being at least, because it’s too complicated at this stage to try to switch horses and because there is no mechanism by which the Conservative Party can actually unseat her at the present time.”

A second referendum?

Westmacott: “There are a lot of people who think that Brexit has turned out so much worse than even the Brexiteers predicted and promised, as well as the Remainers who always thought this was mad… So don’t dismiss the chances of another referendum.  But we’re not there yet.”

David A. Wemer is assistant director, editorial at the Atlantic Council. Follow him on Twitter @DavidAWemer.