‘Le moment est donc venu pour les britanniques de faire de choix’
Emanuel Macron’s words at his press conference with Angela Merkel in Paris on 27 February naturally sound a little more precise and elegant in French. He said the UK must choose; we don’t need more time, but decisions; a request for an extension to the Article 50 notice period will be examined but must be justified by a clear prospect of the objective that’s being pursued. Jeremy Corbyn’s concession on a referendum on 25 February and Theresa May’s on an extension the following day were a moment of euphoria for Remainers, but they do not assist decision-taking. Keir Starmer’s formulation from the Labour front bench on 27 February (Hansard col 393) was of a public vote that ‘would include a credible leave option and remain. It could be attached to the Prime Minister’s deal…or it could be attached to any deal that managed to win a majority in the House of Commons’. There is no sign at all that enough Conservative MPs would support such a vote, or that such a choice excluding no deal would be accepted as fair by brexiteers.
May’s retreat was in the knowledge that on 27 February she had to concede the substance of the Cooper/Letwin amendment (later fronted by Spelman, but not moved) in order to retain government control of Commons business. May achieved that but could not avoid a vote on a second Cooper amendment that merely repeated in terms May’s new stated approach. It passed 502-20, but this contrasts with the 600-24 defeat on 15 January of a call for a unilateral UK right to terminate the backstop, a similar smoking-out of hard ERG types. About 100 Conservative and DUP members went on abstentionist watch, twice as many as on 14 February when May’s quasi-neutral motion was defeated.
Attention now focuses on the substance of what if anything May can obtain over a weekend from the EU to attach to the second meaningful vote on Tuesday12 March. Michel Barnier chose to put out pessimistic noises from the EU side on Wednesday 6 March; being on the receiving end of ‘robust, strong views’ from Attorney General Geoffrey Cox cannot be pleasant. Expectations of the talks by both the government and backbench brexiteers have been scaling down, but perhaps not fast enough to come into line with what is attainable. May mentioned in her statement on 26 February (Hansard col 165) that the process would include a joint workstream to carry through the alternative arrangements by the end of 2020 whether or not a future overall deal had been secured. UK strategy seems to have been a reinforcement, perhaps a quasi-legal one, of the already stated intention of the two parties to secure these arrangements and some text on this appears to be on offer from the EU27 if the backstop itself is not dismantled.
The UK’s last throw seems to be an arbitration mechanism (already an aspect of the Withdrawal Agreement (art 171)) to give the UK a theoretical possibility of a backstop exit that did not involve EU institutions. Geoffrey Cox said a little more about this in the Commons on 7 March (col 110); he refused to disclose the question the UK has suggested would be put to the arbitrators. It would need to be sold to the Brexiteers as changing a lot and to the Irish as changing nothing. Some Brexiteers, notably Jacob Rees-Mogg (in the Financial Times on 27 February and Daily Mail the next day), have signaled that they would be easier to please than before, through an annex or codicil with an equal legal weight to unchanged withdrawal agreement. Others would not take the fig-leaf. A DUP decision even to abstain would shift the plates a lot.
If there is a will to declare victory, implausible things can happen. But May’s work will be cut out to secure anything remotely presentable as the prospectus she set out on 29 January: (‘not a further exchange of letters but a significant and legally binding change to the withdrawal agreement’ (Hansard col 678); a tougher ask than the Brady amendment wording the House endorsed, ‘requires the Northern Ireland backstop to be replaced with alternative arrangements to avoid a hard border’). Perhaps the EU27 may even want to save May from throwing the meagre content that might be available from them on to the fire of another lost vote.
Reduced to pleading with and blaming the EU, May has real difficulty in framing her approach to the vote on Tuesday 12 March. Her original plan was probably to have a second meaningful vote go much better for her than the first in order to get a deal-clinching final movement from the EU27. By timetabling votes on no-deal and extension she now anticipates that they will happen. Macron’s words set up an edge-of-the-precipice European Council on 21-22 March. Variant legal views appear to be in circulation about whether the UK could refuse to hold European Parliament elections on 23 May if it were still a member. A messy Brexit – say on 22 May – would be the most powerful of signals to eurosceptic elements in the EU electorate. An emollient wave-through of a longer extension would not, making the difference of tone between Merkel and Macron in Paris of some significance.