Theresa May’s delay tactics could yet pay off

Today was long expected to be a difficult day for the government—the House of Commons was supposed to vote this evening on the prime minister’s Brexit Deal, and she was likely to have been roundly defeated.

It remains a difficult moment for Theresa May, but for different reasons. Having taken the last minute decision yesterday to pull the vote and first seek further “reassurances” from the EU, she faces fury from opposition leaders at home. Things don’t look much easier abroad, with EU leaders looking set to push back against substantive changes to the deal on the table at this stage.

So why has May opted for this politically tricky delay tactic? For one, the predicted size of her defeat in parliament could have made her position as leader untenable. She therefore chose to pursue talks with the EU that could help overcome MPs’ “widespread and deep concerns” about the Irish backstop arrangement—and so help pass her deal.

The backstop is the element of the UK’s Withdrawal Agreement that is intended to act as an insurance policy for Ireland and Northern Ireland. Its purpose is to prevent any hardening of the border in Ireland, even if the UK and EU haven’t reached an agreement on future relations. It was first proposed in late 2017, and by December both the UK and EU had committed in principle.  Difficulties arose when it came to translating this commitment into legally binding language. Brussels’ initial plan was to keep Northern Ireland alone in the EU’s customs territory and regulatory area—something that May said would be an anathema to any UK prime minister. The proposal has since significantly evolved—the current backstop sets out that the EU and the whole of the UK would remain in a customs union, with Northern Ireland also subject to special customs and regulatory arrangements. This UK-wide expansion of the backstop is a negotiating “win” for the UK government.

But parliament’s hostility to this backstop was underestimated—Northern Ireland’s DUP, the Labour Party and a number of Conservative MPs are deeply opposed. There are broadly two points of opposition: first, pro-Brexit MPs are concerned that the backstop could indefinitely “trap” the UK in a customs union—the recent legal advice from the Attorney General did little to soothe this worry. If the UK did remain in a customs union in the long-term, it would be unable able to exercise a fully independent trade policy, and would be required instead to mirror the EU in important aspects.

Second, DUP MPs in particular are opposed to the backstop because it would subject Northern Ireland to a different legal order to the rest of the UK in a number of areas, with no clear say for Northern Ireland institutions.

So what could the prime minister secure to win enough support in parliament for her deal? Open Europe has considered this question and proposed three limited but substantive adjustments—not all of which necessarily require the EU to formally reopen the deal. Firstly, while the UK already has a role in deciding whether new EU laws can apply to Northern Ireland, it should commit to consult the Northern Ireland Assembly as part of that domestic process. Secondly, the government should seek guarantees that the EU won’t unilaterally impose new border checks between Northern Ireland and Great Britain. And thirdly, it should call for greater assurances from the EU that the backstop cannot function as a permanent relationship.

More radical changes, such as scrapping the backstop altogether, or inserting a firm unilateral exit mechanism, aren’t viewed as credible at this point in negotiations—the alternative is a no deal exit.

European Council President Donald Tusk said yesterday, “we will not renegotiate the deal, including the backstop, but we are ready to discuss how to facilitate UK ratification.” However, this might change if the UK parliament remains deadlocked in January. After all, the EU has also shown it wants a deal. Its concerted effort to get over the “sufficient progress” line last December, and its last-minute shift to include a previously unacceptable UK-wide customs union backstop, all point to this.

The question remains whether any “reassurances” will be enough to carry the support of parliament. Importantly, if there is no majority for any deal, the UK would leave by default in March 2019 with no deal. The prime minister’s strategy of delay suggests she is hoping the ticking clock will encourage MPs to reflect on this and fall in line behind her.