Friday 18 October 2019

John Downing: 'May's loss might look like Leo's gain - but we can all still lose'


Anger: British Prime Minister Theresa May confronts European Commission President Jean-Claude Juncker in Brussels over his comments about the British negotiations
Anger: British Prime Minister Theresa May confronts European Commission President Jean-Claude Juncker in Brussels over his comments about the British negotiations
John Downing

John Downing

Is that the sound of legal trapdoors being stress-tested in the distance? Or, are we just imagining things?

EU leaders have in the past put their best lawyers on the case and found devices to haul total calamities like Brexit back from the edge of the abyss. They did it back in 1992 when Danish voters had rejected the EU Maastricht Treaty, which among other things gave the world the euro.

The legal eagles did it again in 2009 in a move which helped Ireland ratify the EU Lisbon Treaty, after setting the Irish electorate to vote again and recant their rejection the previous year. And they were at it more recently in 2016 when the Netherlands rejected an association agreement with Ukraine, and when the French-speaking Belgian regional parliament held up the EU-Canada deal.

In each of those cases it was deemed necessary when political declarations by the combined EU leaders were dismissed as insufficient. The DUP's dismissal of "warm words" is a current example of the dismissal of political guarantees.

The four cases of legal devices cited above varied in detail. But the principle remained the same: they addressed concerns and dialled down objections of one member state or region. But just as importantly, they did not undermine the EU treaty concerned.

Again in principle, it was done by singling out a particular interpretation of the section of the treaty which caused concern. And then gave that interpretation EU or international legal status.

Can this be done in the case of two assurances given the UK yesterday? These are that nobody wants the backstop and it must be overtaken by a proper EU-UK post-Brexit trade deal. That every effort will be made to avoid using the backstop - and its use, if at all, will be temporary.

The above precedents suggest that such a legal underpinning is possible. But the further problem is that these assurances have been instantly deemed insufficient by the UK.

And worse again, there is more than a suggestion that even further concessions, which could alienate Ireland and other member states, will very likely be insufficient to get this benighted Brexit deal through the UK parliament at Westminster.

Now, all of that may appear unduly glum just 10 days from Christmas. But it has been an unduly glum week for the glum topic that is Brexit.


First off, British Prime Minister Theresa May found her draft EU-UK Brexit deal was so despised that it was not worth putting to a ratification vote in Westminster. Secondly, while she won a no-confidence vote, over a third of her Conservative Party colleagues voted against her. Thirdly, she went from that London drama to a wall of opposition and rejection at an EU leaders' summit Brussels.

On a more positive and lighter note, Mrs May does get considerable kudos for her continuing steely determination not to give up. There is a growing sense that she is 'demob happy', as she can see the end of her tenure as prime minister in line of sight, and can devote all her energy to getting this Brexit deal through.

But her Brussels excursion proved a definite loss and was dubbed humiliation by her own national media.

By contrast, it again looks like a win for Taoiseach Leo Varadkar and his team.

Ireland has achieved the bulk of its goals to face a very difficult situation, and importantly still has huge EU solidarity.

But we must still be tentative here because this issue is not definitively resolved and the prospect of a no-deal Brexit could mean economic carnage and a hard Border at all events.

The next moves are unclear. Preparations for a hard Brexit will become more visible. Private EU-UK talks must shun the limelight. There are up to eight potential scenarios - none is exactly encouraging.

Irish Independent

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