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23 January 2019

On the backstop, May has two options to avoid no deal: win Labour votes or call an election

For the former, the PM would have to further soften the political declaration – risking alienating more Tory Hard Brexiteers.

By Stephen Bush

Is there life in Theresa May’s withdrawal agreement yet? The possibility that parliament could vote to extend Article 50 (or rather vote to ask for an extension, as an extension, unlike revocation, is not in the gift of the United Kingdom but can only be done with the consent of all 27 other member states) has some Brexiteer critics of the deal suggesting they could vote for May’s exit deal in order to avoid ending up with no exit at all.

The problem for May is that they have a price: guarantees that the backstop is time-limited and that the British parliament can unilaterally exit from it.

That’s nothing doing as far as the EU27 are concerned. The backstop is, in essence, an insurance policy that, whatever happens, the customs and regulatory orbit allowing an open border between Northern Ireland and Ireland will endure. An insurance policy that one side can unilaterally exit without the consent of the other is no insurance policy at all.

May is fond of saying that no British prime minister could ever sign an accord that put further barriers down the Irish Sea. That is, bluntly, untrue, not least because plenty of British prime ministers have approved the creation of barriers between Northern Ireland and the United Kingdom and May’s original Plan A before the December agreement was for the backstop arrangements to apply to Northern Ireland alone.

It is, however, true, to say that no Irish taoiseach could sign an accord that created a hard border on the island of Ireland. The political costs of signing up to the creation of a hard border will always outweigh the political costs of having one enforced due to a no-deal Brexit.

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People are getting overexcited about some remarks made by the current Taoiseach, Leo Varadkar, in which he appeared to suggest that in the event of no deal, that would change. What he actually said was that, in the event of a no-deal exit, Ireland would still want to negotiate an accord to maintain the customs and regulatory alignment  that allows no border on the island of Ireland, in other words, the backstop by another name.

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There is no appetite among the rest of the EU to simply overrule Ireland to pass the withdrawal agreement – which is in theory possible as the Article 50 process is governed by qualified majority voting – because it would be a pointless exercise of self-harm. The Irish government has a veto over the final trade agreement so the same problem would simply recur in December 2020, when the UK’s transition period is due to end, but with added rancour between Ireland and the EU.

If concessions on the backstop are the Conservative price for passing the deal, then May is going to have to either get Labour votes for the deal via further softening of the political declaration or change the balance of forces in the House of Commons via an election. All other paths point towards no-deal Brexit – or no Brexit at all.