Countdown to Brexit: 16 days – The ‘Meaningful Vote’ result puts the UK’s future in the hands of Europe
The Brexit vote in Parliament is being minutely examined from a UK perspective. In this post, we take a look at how Brexit as viewed by Europe – signposted in the words of European President, Jean-Claude Juncker, made after Monday’s late-night meeting with UK Prime Minister, Theresa May.
MPs voted down her deal by 391 to 242, yesterday. The Prime Minister immediately said that MPs will now get a vote on Wednesday on “whether the UK should leave without a deal on 29 March” – with Tory MPs having a ‘free’ vote. If MPs vote to take no-deal off the table – a vote on Thursday on submitting a request to the EU that Brexit should be delayed.
We have previously posted insights into the legal, constitutional, political and practical implications of a ‘Brexit no-deal’; and a request from the UK to the EU for a ‘Brexit delay’.
President Juncker appears to have anticipated the outcome of yesterday’s vote – and was already looking beyond 29 March in order to set the direction and mood for the future negotiations between the UK and EU beyond Brexit. Negotiations that will establish the relationship – and winners and losers – between the UK and EU for generations to come. It is clear that the EU has won the first round of negotiations – and engineered a Brexit that means the UK – represented by its Government - will start the negotiations from a position of weakness. It is also highly unlikely that the EU27 member states and European parliament will unanimously agree to a Brexit delay given the stringent conditions for granting any extension.
Presidents Juncker and President Tusk had previously “clarified their understanding of the Withdrawal Agreement – and in particular the backstop” - and committed to “swiftly negotiate” the future UK-EU relationship.
The negotiating teams have, indeed, been meeting continuously - and the leaders have met on at least 7 occasions - since May’s deal was rejected by Parliament in January. The EU and the 27 remaining member states have been united – the Withdrawal Agreement has not be re-opened. The negotiating teams were merely tasked: “to explore additional guarantees and clarifications relating to the backstop, alternative arrangements to ensure the absence of a hard border on the island of Ireland - and additions or changes to the Political Declaration related to the future relationship that could be helpful to all of us.”
What do the EU think of Mrs May’s last-minute appeal for a lifeline? Juncker made it clear that the jointly agreed ‘Instrument’ clarifies and gives nothing – and simply adds a legal guarantee on the nature of the backstop:
the backstop is an insurance policy – nothing more, nothing less;
the intention is not for it to be used like with every insurance policy;
if it were ever to be used, it will never be a trap. If either side were to act in bad faith, there is a legal way for the other party to exit; and
it complements the Withdrawal Agreement without reopening it.
Juncker noted that the Irish Taoiseach is prepared to back this approach in the interests of an overall deal – and the President of the European Council will recommend that the European Council endorses this Joint Instrument – subject to a prior positive vote in the House of Commons on the Withdrawal Agreement.
His conclusion is that the choice is crystal clear: “it is this deal - or Brexit might not happen at all.
He signed off by saying: “It is with this in mind that I hope and I trust that today's ‘meaningful legal assurances’ will be ‘meaningful enough’ for the ‘meaningful vote’, tomorrow. Let's now bring this withdrawal to a good end. We owe it to history.”
In his statement on the legal status of the Instrument within the Withdrawal Agreement, the Attorney-General, Geoffrey Cox MP, said that whilst the new assurances secured by the PM "reduced the risk that the United Kingdom could be indefinitely and involuntarily detained" in the Irish backstop if talks on the two sides future relationship broke down due to "bad faith" by the EU – the legal position "remains unchanged" - and Northern Ireland could be tied to the EU. Specifically – if deal is accepted by Parliament today, the UK will leave the EU on 29 March – but the backstop comes into effect if Brexit negotiations as set out in the Political Declaration have not been concluded by 31 December 2020.
The wording of the ‘instrument’ found its way into the terms of debate for ‘Meaningful Vote 2’ – according to the Parliamentary Order Paper for 12 March in the motion laid in the name of the Prime Minister: “That this House approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 the following documents laid before the House on Monday 11 March 2019:
the negotiated withdrawal agreement titled ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’;
the framework for the future relationship titled ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’;
the legally binding joint instrument titled ‘Instrument relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’, which reduces the risk the UK could be deliberately held in the Northern Ireland backstop indefinitely and commits the UK and the EU to work to replace the backstop with alternative arrangements by December 2020;
the unilateral declaration by the UK titled ‘Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol’, setting out the sovereign action the UK would take to provide assurance that the backstop would only be applied temporarily; and
the supplement to the framework for the future relationship titled ‘Joint Statement supplementing the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland’, setting out commitments by the UK and the EU to expedite the negotiation and bringing into force of their future relationship.”
On Monday, Parliament had ‘considered in a debate’ – as they are required to do for e-petitions that achieve the minimum number of signatories – a motion to: “Revoke Art.50 if there is no Brexit plan by the 25 of February.”
In summary - Brexiteers and Remainers each had the opportunity to air their views. Little new content came out of the two-hour debate held in Westminster Hall – but the diametrically opposing arguments were coherently and professionally expressed. There was no noticeable change in the entrenched starting positions from any of the MPs who spoke in the debate.
The debate itself was overshadowed by the sudden announcement that Theresa May was leaving for Strasbourg without prior notice – and that, at the time of the debate, there was no certainty that the meaningful vote on accepting the Prime Ministers’ deal would be going ahead the next say – let alone the wording of any motion - should MPs be allowed a ‘Meaningful Vote 2’. It now appears that this debate should have been given higher profile as a prequel to Thursday’s vote!
Michel Barnier kisses the hand of Theresa May on her arrival in Strasbourg on Monday. In all fairness, he always does - and she was received with a kiss on the cheek from President Juncker – and there’s an even better photo of the man-hug between Juncker and Barnier whilst a smiling Tusk looks …
Remarks in full: European President, Jean-Claude Juncker, after meeting with UK Prime Minister, Theresa May on 11 March 2019
Before the first meaningful vote in January, together with President Tusk, I sent a letter setting out our understanding of the Withdrawal Agreement, in particular on the backstop and our commitment to swiftly negotiate our future relationship.
Since then, the Prime Minister and I, we met very often, at least three times in the space of just one month, including in the desert of Egypt by the way.
We tasked our negotiating teams to explore additional guarantees and clarifications relating to the backstop, alternative arrangements to ensure the absence of a hard border on the island of Ireland and additions or changes to the political declaration related to the future relationship that could be helpful to all of us.
Michel Barnier met four times in the space of one month with the UK's negotiator Steve Barclay and the Attorney General.
The EU has spared no energy, time or commitment to clarify, reassure or explain what the Withdrawal Agreement is – and what it is not. We left no stone unturned. Our mind has always been open, our work always creative and our hand has always been outstretched.
It is in this spirit that today the Prime Minister and I have agreed on a joint legally binding instrument relating to the Withdrawal Agreement. This Instrument provides meaningful clarifications and legal guarantees on the nature of the backstop.
The backstop is an insurance policy – nothing more, nothing less.
The intention is not for it to be used like with every insurance policy.
And if it were ever to be used, it will never be a trap. If either side were to act in bad faith, there is a legal way for the other party to exit.
The Instrument which sets out these details has legal force while fully respecting the Guidelines the European Council has unanimously agreed. It complements the Withdrawal Agreement without reopening it. My team and I have been in constant contact with our Irish friends over the past days and over the last hours. The Taoiseach would be prepared to back this approach in the interests of an overall deal.
I have just informed the President of the European Council this evening and asked him to recommend that the European Council endorses this Joint Instrument – subject to a prior positive vote in the House of Commons on the Withdrawal Agreement.
In politics, sometimes you get a second chance. It is what we do with this second chance that counts. Because there will be no third chance. There will be no further interpretations of the interpretations; and no further assurances of the re-assurances – if the meaningful vote tomorrow fails.
Let us be crystal clear about the choice: it is this deal or Brexit might not happen at all.
Faced with this stark reality, Members of the House of Commons have a deep responsibility and fundamental choice to make.
I was following day after day, sometimes minute after minute, the debates in the House of Commons, interesting debates, and all the views which were expressed in the debate have to be respected. I am convinced that the Members of the House are patriots – and rightly so – but I am as convinced that the Members of the House want to have a good future relationship with the European Union.
If the Withdrawal Agreement gets the backing of the House, the European Union is ready to immediately begin preparations on our future relationship. The European Commission's negotiation team is in place: our tireless and extremely skilled Chief Negotiator Michel Barnier will be at the head of this team. We are ready.
The United Kingdom may be leaving our Union but it will not be leaving our hearts and minds. We are bound together by common history and geography. Our personal ties, friendships and relationships run deep and this will never change.
It is with this in mind that I hope and I trust that today's meaningful legal assurances will be meaningful enough for the meaningful vote tomorrow. Let's now bring this withdrawal to a good end. We owe it to history.
Wir haben lange verhandelt. Es waren schwierige Verhandlungen. Wir sind meterweise, manchmal auch millimeterweise aufeinander zugegangen. Ich bin fest davon überzeugt, dass die Vereinbarung, die wir heute getroffen haben, der einzig gangbare Weg ist.
[Google translate] We have long negotiated. It was a difficult negotiation. We approached each other by the meter, sometimes by the millimeter. I firmly believe that the agreement we have today is the only viable option.
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