65: Brexit – alternative arrangements to backstop – let’s go round again

Aaron Nelson Legal Director

Last night, Parliament voted in favour of two amendments. But what exactly were they, and what happens now?

The amendments were to a motion tabled by the PM after the Government’s Brexit Deal was roundly rejected by the House of Commons on 15 January. That motion stated:

‘That this House, in accordance with the provisions of section 13(6)(a) and 13(11)(b)(i) and 13(13)(b) of the European Union (Withdrawal) Act 2018, has considered the Written Statement titled “Statement under Section 13(4) of the European Union (Withdrawal) Act 2018” made on 21 January 2019, and the Written Statement titled “Statement under Section 13(11)(a) of the European Union (Withdrawal) Act 2018” and made on 24 January 2019.’

These two written statements amounted to ‘Plan B’, ie how the Government planned to proceed now its deal had been rejected. As we discussed last time, that Plan B was to:

hold cross party talks, to establish exactly what the sticking points were;
be more open in engaging Parliament in the negotiations on the future relationship with the EU;
embed the ‘strongest possible’ protections on workers’ rights and the environment (designed to gain Labour’s support); and
work to identify how to ensure commitments to no hard border between Ireland and Northern Ireland could be delivered in a way that commanded the support of both the Commons and the EU.

But the PM rejected calls from the Labour Party and others to rule out the prospect of the UK leaving the EU with no deal on 29 March 2019, arguing that the only way to ensure this did not happen would be to agree a deal, or to revoke the UK’s article 50 notification, which she said would not deliver on the referendum result.

Yesterday’s amendments were Parliament’s way of expressing its view on what the Government should do now. The Speaker selected seven of the amendments tabled for a vote. Two were approved (N and I) and five were rejected.

Amendment N: Nothing has changed, so I’m asking you again

The first of the two approved amendments (Amendment N) was tabled by Tory backbencher and Chair of the 1922 Committee Graham Brady. This added the following words to the end of the motion:

‘and requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border; supports leaving the European Union with a deal and would therefore support the Withdrawal Agreement subject to this change.’

You will recall that the backstop provides that, if the proposed UK/EU future relationship does not deliver an open Northern Irish border as required by the Good Friday Agreement – for example, because it doesn’t include a new UK/EU ‘single customs territory’ – the whole of the UK will stay in the Customs Union until such times as an acceptable alternative solution is found.

So the Government has been given an instruction by Parliament to go back to the EU and seek to reopen negotiations on the Withdrawal Agreement, with the aim of replacing that backstop with ‘alternative arrangements’ (which are not described in the motion). The EU has already responded that this is not possible as, in effect, the backstop is an insurance policy to come into play if ‘alternative arrangements’ cannot be found.

The ‘alternative arrangements’ which it appears the Government will be proposing have been dubbed the ‘Malthouse Compromise‘ (after Tory Minister Kit Malthouse, who suggested the Tories needed to find one). The MC has two components:

replace the indefinite backstop with one limited to 10 years, which avoids a hard border by concluding an interim EU/UK free trade agreement (not a single customs territory) with mutual recognition of standards, customs facilitation processes, and promises not to put in place border infrastructure. Also, have a longer transition period, to give more time for negotiations to make even this 10-year backstop unnecessary; and
a ‘managed no-deal’ proposal: the UK asks the EU to honour the Withdrawal Agreement without the backstop, but the UK promises to pay relevant financial contributions during the transition period, allowing more time to negotiate either a future relationship or to prepare for a full ‘no-deal’ exit in 2021.

If this is to be the Government’s plan, it’s hard to see how this will enable progress to be made. The first element is a version of the ‘highly streamlined customs arrangement’ or ‘Max Fac‘ which the Government proposed, and the EU rejected, earlier in the negotiation process. Simply, the EU remains unconvinced that satisfactory technological solutions exist to avoid physical border checks. The second element runs counter to the EU’s view that the backstop is an integral part of the Withdrawal Agreement, ie without the backstop there is no deal, and without the deal there is no transition period. Moreover, the UK’s financial contributions have been agreed as reflecting the benefit of what amounts to continued EU membership during the transition period – promising to pay that during transition does not amount to a concession. Finally, negotiating a free trade agreement in under two years seems unrealistic, and may not even be possible (under WTO rules) if the UK (during transition) is effectively a Member State.

The PM knows all this, but has nevertheless explicitly committed herself to try to get a ‘significant and legally binding change to the withdrawal agreement’. She said:

‘What I’m talking about is not a further exchange of letters but a significant and legally binding change to the Withdrawal Agreement. Negotiating such a change will not be easy – it will involve re-opening the withdrawal agreement – a move for which I know there is limited appetite among our European partners. But I believe that with a mandate from this House … I can secure such a change in advance of our departure from the EU.’

Whether securing such a change would then get the deal through Parliament is another matter. In response to a question from Tory Brexiteer Peter Bone, the PM conceded that MPs who voted for the Brady amendment would not necessarily be bound to vote for any Brexit deal she subsequently negotiated – notwithstanding that the amendment expressly states that, if the backstop were replaced with ‘alternative arrangements’, MPs would ‘support the withdrawal agreement subject to this change’. MPs could vote down whatever ‘alternative arrangements’ the Government agrees anyway.

Amendment I: You think I will be different now?

Which brings us to the Amendment I, tabled by Caroline Spelman, which added the following words to the end of the motion:

‘and rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship.’

This passed by 8 votes, supported by all the parties other than the Conservatives and DUP, but with 17 Tory MPs rebelling. This amendment is not binding on the Government, but it is indicative of the will of the House to avoid a ‘no deal’ Brexit.

The fact that MPs passed it allows Jeremy Corbyn to meet with the PM for talks (he had made it a precondition of such talks that no deal was ‘off the table’). And that opens up the slightest chance of an alternative compromise – one which seeks to align moderates behind a soft form of Brexit, perhaps by aligning the Government’s proposed ‘single customs territory’ with Labour’s preferred ‘permanent customs union’, in an effort to avoid ‘no deal’.

Of course, such an agreement has always seemed unlikely – the PM knows it would split the Tory party – but neither does she want to preside over a disastrous ‘no deal’ Brexit which could ruin the Tories’ reputation for responsible Government. She’ll have heard Oliver Letwin’s warning yesterday:

‘I have actually got to the point where I am past caring what the deal is we have – I will vote for it to get a smooth exit … If those [no deal] risks materialise, our party will not be forgiven for many years to come. It will be the first time when we have consciously taken a risk on behalf of our nation, and if terrible things have happened to real people in our nation because of that risk, we will not be able to argue it was someone else’s fault.’

Will the MPs vote sway her thinking?

Rejected amendments: Let’s go round again

The five rejected amendments were:

A (Official Opposition) to require time for Parliament to consider and vote on various Brexit options, including Labour’s preferred permanent customs union (binding);
O (SNP) to call for the Government to seek an extension of Article 50, rule out no deal, and prevent Scotland leaving the EU (non-binding);
G (Dominic Grieve) a series of procedural modifications to give MPs a chance to hold a series of votes on different options for the Brexit withdrawal process (binding);
B (Yvette Cooper) a series of procedural modifications to give MPs a chance to pass her EU Withdrawal No.3 Bill which we discussed last time (binding); and
J (Rachel Reeves) to require the PM to request an extension to the Article 50 period, if the House of Commons has not approved the deal by 26 February 2019 (non-binding).

(It’s worth mentioning in passing that none of the amendments called by the Speaker put the question of a second referendum to the House. That remains an issue for another day.)

It’s important to remember that the PM has already committed to giving MPs another ‘meaningful vote’ on the Brexit deal on 13 February. If the EU agrees to renegotiate the backstop, that vote would take any progress in that regard into account; if the EU refuses, then MPs will have to again face a choice between ‘this deal’ or ‘no deal’.

If MPs reject the deal again, the PM has committed to have a further debate on an amendable motion on 14th February – which could see many of the amendments rejected above tabled again. That commitment may have convinced Tories, who may have been tempted to vote for Grieve’s or Cooper’s amendments (which, as they contained procedural elements, would have been binding) in order to avoid a ‘no deal’ Brexit, that they could vote against, safe in the knowledge that they would have another chance to vote for something similar later.

The can has been kicked down the road again. But has any real progress been made?

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