How Theresa May can still get a version of her Brexit deal over the line

A Remain campaigner outside Parliament
A Remain campaigner outside Parliament

After defeat in the Commons by a 230-vote margin Theresa May’s deal looked to be dead and buried, and yet the Prime Minister is clearly not giving up.

After the defeat, European diplomats assumed that she would change course, recognising that the problems with the deal extended far beyond the narrow issue of the Irish backstop.

They inferred that some kind of cross-party arrangement, perhaps built around Labour’s policy of a permanent customs union, would now be the only way to get the deal over the line.

But last week in her calls with EU leaders Mrs May stuck to her guns, to their “disbelief”, signalling her clear intention to plough on. Has the prime minister taken leave of her senses, or might there yet be a way through? Here we look at her options in Europe.

But the EU will never give in on the Irish backstop, right?

No. It is inconceivable now that the EU will, as some leading Brexiteers have demanded, “drop the backstop”. This is for both political and practical reasons.

Politically, the EU leaders have invested heavily in the ‘backstop’, publicly adopting the Protocol negotiated by Michel Barnier, with vocal support for Leo Varadkar, the Irish Taoiseach.

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To rat out the Irish now would send a terrible message to small EU member states that the EU’s much-vaunted solidarity only holds for as long as is expedient.

Practically, the EU also cannot reconcile UK demands to leave the Customs Union and Single Market with a pledge to have an ‘invisible’ border in Northern Ireland, with ‘no additional infrastructure’.

The backstop is the guarantee that the Good Friday Agreement, which is valued by both sides, is not unravelled by Brexit, risking a return to violence on the island of Ireland.

But wouldn’t a ‘no deal’ have precisely this effect?

It would. And this paradox is not lost on EU leaders. In a recent call to Mr Varadkar the German chancellor Angela Merkel repeatedly asked the Irish leader what he would do in the event of a ‘no deal’. The implication is that EU leaders do have some misgivings about the backstop.

Mr Varadkar, sources say, never directly answered Mrs Merkel’s question - and indeed the Irish government never has. It simply turns the tables back on the British, saying that Brexit is a British desire and they expect the UK government to “uphold its responsibilities” in all eventualities.

So might the EU soften the backstop to avoid a ‘no deal’?

This is a harder question to answer. In December Mrs May went to Brussels and asked EU leaders for concessions on the backstop, either a time-limit, or a guarantee that a trade deal would be in place by 2021 to obviate it ever being needed.

The leaders replied with a resounding ‘no’ - but they did so because they did not believe such concessions would carry the day for Mrs May. Correctly, as it turned out.

The real question is whether, if Mrs May was to show that such a concession would get her deal over the line, she would get a different response.

Would clarifying the future declaration help with the backstop?

It might. Right now, the Political Declaration on the Future Relationship is a broad document capable of sustaining a wide range of visions for Brexit.

That was supposed to be its strength, but more mushing of the Political Declaration, the more uncertainty there is - and the more need for that Irish backstop.

It is possible that if Mrs May was mandated by Parliament to accept a permanent customs union (she seem unwilling to go there herself) then the EU might - just might - be more open to concessions on the backstop.

But they keep saying no? Why would they change their minds?

Because no-one on the EU side wants a ‘no deal’. They may be better prepared than the UK, they may well suffer less proportionally, but that doesn’t mean the EU will let a ‘no deal’ happen lightly.

If hypothetically Parliament passed the Withdrawal Agreement, but on the condition that the EU agreed to a time-limit on the Irish backstop, then EU diplomats concede that would put their side in a tight spot.

If the UK was signed up to a customs union, it could be argued that the risk posed by the British just walking away was reduced. In any event, it is clear that there is no majority in the British parliament for a costly hard rupture with the EU.

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There are already signs that in the right circumstances, the EU would consider re-opening the Withdrawal Agreement - Heiko Maas, the German foreign minister has said as much.

The Polish foreign minister Jacek Czaputowicz has been even more explicit, mooting a ‘five year’ time limit to the backstop, were it ever to kick in.

It would be messy - you would need a new negotiation to reopen the backstop, and there would be more horse-trading over aspects of the deal which may not be to the advantage of the UK.

Five years might become ten years of negotiations. It would also require an extension of Article 50.

So how would May actually land the deal?

Well, this is why the Prime Minister appears to be running down the clock on the negotiation still further.

To make such a deal possible, all the factions in Parliament need to have accepted that their preferred alternatives - second referendums, general elections, a hard ‘no deal’ - would not fly.

Diplomats and officials accept that this would be a hard sell for both sides. Brexiteers would baulk at a five-year timeframe (if you add the transition periods, that means potentially seven years in total) just as giving up on an indefinite backstop would be politically hard for the Irish.

But as one EU diplomat says there may yet come a time, at “five minutes to midnight”, when all sides are looking for lifeboats as the iceberg of a ‘no deal’ looms dead ahead - that such a deal gets done.