11th Hour Changes: May Makes Changes to the EU Withdrawal Agreement

What’s going on here?

Theresa May has secured the “legally binding” changes she sought to the EU withdrawal agreement.

What does this mean?

Last night, Monday 11th March, Theresa May secured the last-minute changes that had been asked for by MPs when they rejected the deal last month. The withdrawal agreement, currently awaiting approval by parliament, sets out the terms of the UK’s exit from the EU. It also dictates the period of time the UK and EU have to negotiate their permanent future relationship. The current aim is for a deep trade deal similar to those signed by countries like Canada and South Korea and the EU. However, the main point of contention, legally speaking, has been the backstop.

The backstop sets out what happens if the UK and EU cannot negotiate a future relationship by December 2020, although this can be extended to 2022 if both sides agree to the extension. Should the backstop come into effect it would mean that the UK would enter into a “single customs territory” with the EU, in order to prevent a hard border in Northern Ireland. Northern Ireland would also be subject to some EU rules in order to maintain a completely open border with the Republic of Ireland.

The key controversy surrounding the backstop is the fact this it is potentially indefinite, a problem which has been highlighted by Geoffrey Cox QC, the attorney general, in his advice to the Prime Minister. Cox has said that there is no mechanism for the UK to withdraw itself from the backstop which could leave the UK stuck in limbo. As such, May sought the changes yesterday partly in order to enable Cox to change his official legal advice however he has not been completely convinced as will be seen below.

What’s the big picture effect?

The Irish border is so important as the UK, EU and Ireland are all legally bound by the Belfast Agreement, known as the Good Friday Agreement. This ended a brutal conflict in Northern Ireland and having a backstop now would go against the aims of the agreement. In order to do this, May made three last minute changes to the withdrawal agreement.

The first is the addition of a joint interpretative statement. This would give legal force to a letter which states that the EU intends to negotiate an alternative and to end the backstop as soon as possible.

Secondly, a unilateral statement from the UK will also be added to the deal. In the statement, the UK sets out its position that should there be no prospect for ending the backstop, then the UK would be able to withdraw itself unilaterally from the backstop.

Finally, additional language has been added to the ‘political declaration’, the document which sets out what type of future relationship both sides intend to negotiate. The language emphasises the need to negotiate in time and avoid the backstop. It also gives more clarity to the alternative option to the back stop; the technological border. This is the UK’s proposition that if enough modern technology can be incorporated on the Irish border then it can be made seamless and avoid a hard border. This is now a legally codified means of avoiding or exiting the backstop.

The attorney general has altered his legal advice today to say that while the changes reduce the risk, ultimately the UK still requires the EU’s agreement to exit the backstop. This shows the inherent troubles with adding unilateral declarations to agreements, that while they can set out parties intentions and opinions, they are not binding.

The question now becomes whether or not parliament accepts the changes and passes the withdrawal agreement. Parliament is due to vote this evening on it. The government has a significant margin to overcome as the original vote was the largest defeat for a government in parliamentary history. If parliament rejects the amended withdrawal agreement then they will vote tomorrow on whether to leave without a deal, and if that fails they will vote the day after on whether to request an article 50 extension from the EU to negotiate further changes once again.

Report written by Harry B.

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