Richard Ekins: The real meaning of Cox’s advice. There is only a theoretical risk of being trapped in the backstop.

A number of important points about his view have been overlooked or misunderstood by some MPs and commentators.

Professor Richard Ekins is a Fellow of St John’s College and an Associate Professor in the University of Oxford. He leads Policy Exchange’s Judicial Power Project.

Geoffrey Cox’s advice on the UK’s legal position in relation to the backstop was received and debated on an extraordinarily compressed timetable.  The relevance of the Good Friday Agreement (GFA) only really came up in the Commons minutes before the meaningful vote on Tuesday evening.  In consequence, a number of important points have been overlooked or misunderstood by some MPs and commentators.

In a new paper published yesterday by Policy Exchange, Professor Guglielmo Verdirame, Sir Stephen Laws and I take a second look at the Withdrawal Agreement, Protocol, Joint Instrument, Unilateral Declaration, and Attorney General’s advice, and explain why the legal risk of being trapped in the backstop is much lower than many assume.

The “good faith” obligation in the Withdrawal Agreement has a particular meaning in international law, which has been overlooked, and is not equivalent to the absence of dishonesty, malice, or bad faith in domestic law.  It would be possible for the UK to establish that the EU was in breach of that obligation if it persistently and unreasonably refused to conclude an agreement that replaced the backstop.  The suggestion made by some that the “good faith” obligation would end up being authoritatively interpreted and applied by the Court of Justice of the EU is mistaken – this is an obligation in international law concerning negotiations about a new agreement.

The “good faith” obligation is reinforced by the “best endeavours” obligation in the Protocol, which sharply minimises the risks that negotiations will become intractable or that the backstop will become permanent by default.  This “best endeavours” obligation has teeth and is more robust and specific than other equivalents in international law which have been taken seriously and been significant.

The Joint Instrument and Unilateral Declaration reinforce and specify these obligations of “good faith” and “best endeavours”.  This sharply reduces the risk that the EU will attempt to make the backstop permanent by default in order to secure an advantage in negotiations about its replacement, which was a real risk in view of some of the comments attributed to key EU figures, including Emmanuel Macron and Sabine Weyand.

The Joint Instrument makes clear that the EU cannot insist that the backstop be replaced by an agreement that replicates the backstop – if there are other ways to secure the objectives of the Protocol, which includes especially the protection of the GFA, these cannot be unreasonably rejected.  It would be strong evidence of a breach of the “good faith” obligation if the EU were to attempt to insist on objectives that could not be squared with the GFA or to withhold agreement when the UK had proposed reasonable alternative means to protect the GFA and avoid a hard border.

Many people have overlooked the priority that the GFA has within the Protocol, a priority confirmed and stressed by the Joint Instrument and the Unilateral Declaration.  If the backstop were to become permanent by default then the UK, Ireland and the EU would all be at legal risk.  This incompatibility between a “permanent by default” backstop and the GFA might become clear by way of a court ruling that the backstop’s permanence violated the rights of people in Northern Ireland under Article 3 of Protocol 1 of the ECHR (the right to free elections).

There is precedent here in relation to Gibraltar’s lack of representation in the European Parliament.  That the backstop had become permanent de facto and its perceived incompatibility with the GFA and its principle of consent might also be made clear by the Stormont Assembly itself.  This incompatibility would constitute a fundamental internal contradiction within the Protocol and this would be an arguable reason to bring the backstop to an end on the grounds that it constituted a fundamental change of circumstances.  Lord Pannick has reached a somewhat similar conclusion.  In the first instance, it would make the obligation to negotiate and to conclude an agreement ever more forceful and urgent.

The final paragraph of Cox’s advice is best understood to confirm only that a theoretical risk remains, one that is highly unlikely to arise in practice because of the stringent obligations to which the UK and EU are both subject to avoid intractable differences precluding agreement.  It is difficult to see how differences between the EU and the UK could become “intractable” when EU and UK conduct is subject to the arbitration process and is capable of being resolved in that way.

However, if it truly were the case that agreement was impossible, that the objectives of the Protocol could not be satisfied by any compromise, then this would also arguably constitute a fundamental change of circumstance.  The possibility of compromise and agreement is, quite rightly, a foundation of the Agreement and Protocol and the parties do not anticipate that they will be unable to reach agreement.  Again, well before one reaches that conclusion, or that impasse, which is what it would be, the reasonableness of EU and UK conduct could be challenged in arbitration.

In other words, it was a mistake to read the final paragraph of the Attorney’s advice to establish that the UK could, and perhaps even would, end up trapped in the backstop.  Such an assessment was premature and should be rethought.

Henry Newman: Why the revised deal’s changes to the backstop are significant – and offer Britain a route out

The final paragraph of Cox’s advice notes that in some circumstances the UK could suspend or exit the backstop under the Vienna Convention on the Law of Treaties.

Henry Newman is Director of Open Europe.

The Brexit options are narrowing. Yesterday evening, Parliament gave a definitive verdict against No Deal. While nothing has yet changed in statute, the Government has now accepted that the Commons is opposed to leaving the EU without an agreement. Later today, MPs will debate a new motion on delaying Brexit, for which there seems to be a majority. With the path to a No Deal Brexit disappearing, Eurosceptic critics of the deal should look again at Theresa May’s deal and, in particular, at the reassurances and clarifications she obtained at Strasbourg on Monday night.

The package agreed at Strasbourg came just hours before the second meaningful vote on Tuesday. As Paul Goodman observed, MPs were being bounced, and needed a “day or two’s deliberation” to weigh up the effect of any legal changes. Jacob Rees Mogg sagely suggested in advance of the vote that delay would have been sensible because “if people feel that they have been bounced, hurried and harried, their natural instinct is not necessarily to cave in, but to stiffen their resolve”. The Government, however, pressed ahead to another defeat (although they did persuade various influential backbenchers to back the deal including, most notably, David Davis).

The fate of the Prime Minister’s deal seemed sealed when the Attorney General’s legal advice was published. To Geoffrey Cox’s credit, he refused to bend his advice to political expediency. But his stark final paragraph kicked away the ladder that some erstwhile critics of May’s deal were halfway through climbing down. And, crucially, his line that a legal risk remained unchanged – “the United Kingdom would have…no internationally lawful means of exiting the Protocol’s arrangements, save by agreement” – distracted attention from a far more significant change outlined in his advice.

Eurosceptic critics of the deal have long been rightly concerned that the UK could be ‘trapped’ in the backstop if the European Union refused to negotiate in good faith. These fears were exemplified by a threat which Emmanuel Macron made in November – that the EU would use the backstop as a “lever” to extract concessions from the UK. He strongly implied that the UK would be forced to “remain for the long term in a customs union” unless it conceded on the future relationship, fishing rights and so on. This tallied with reported comments made by Sabine Weyand.

The changes agreed at Strasbourg on Monday night addressed that important concern. As the Attorney General himself noted in Paragraph 17 of his legal advice, the Strasbourg package of changes “reduce the risk that the United Kingdom could be indefinitely and involuntarily detained within the Protocol’s provisions at least in so far as that situation had been brought about by the bad faith or want of best endeavours of the EU.

The risk that remains unchanged as per the concluding Paragraph 19 of his legal advice is a separate legal concern – that is, that the UK is unable to put forward any workable solutions to the Irish border. In that case, the backstop would remain binding under international law, unless fundamental circumstances changed.

But Eurosceptic critics of the deal are rightly convinced that a combination of technology, alignment, cooperation and facilitation can resolve the Irish border issue, as long as the EU does not arbitrarily refuse to engage with whatever the UK puts forward. In addition, the final paragraph of Cox’s advice notes that were the UK trapped in the backstop and there to be a “fundamental change of circumstances”, the UK could suspend or even exit the backstop under the Vienna Convention on the Law of Treaties.

A new legal opinion published by Guglielmo Verdirame QC – a professor of International Law at King’s College, London – sets out a number of important points which “may have been lost or not fully appreciated in the noise of interventions and commentary of the last hours”. Together with Professor Richard Ekins and Sir Stephen Laws, Verdirame had already written, in a paper published by Policy Exchange back in December, that, even before Monday’s changes, the UK would have had arguments in the event of the backstop becoming a trap. His opinion now reinforces the interpretation that the Strasbourg package has further improved the UK’s legal position. Crucially, Verdirame argues that:

“the risk of the backstop being used as leveraging for the next phase of the negotiations to lock the EU into a backstop-like arrangement indefinitely has receded significantly. In particular, it would be clearly incompatible with its obligations under the Withdrawal Agreement, [backstop] Protocol, and Joint Instrument , for the EU to adopt a negotiating stance that boils down to the position that only ‘backstop 2.0’ can replace the current backstop.

For similar reasons, it would be inconsistent with its obligations for the EU to adopt a stance that reflects the position attributed to President Macron, i.e. that the UK would have to pay a price (e.g. in terms of access to fisheries) to leave the backstop. The UK should indicate, in no uncertain terms, that it would regard an approach by the EU to negotiations on such basis, or on the basis of the leaked Weyand memorandum from last November, as incompatible with the EU’s obligations under the WA [Withdrawal Agreement] /Protocol and, more so, as clarified and amplified in the Joint Instrument .”

Moreover, contrary to views that circulated on Tuesday, Verdirame explains, it is incorrect to say that a dispute about whether the EU has acted in “good faith” in seeking to replace the backstop would end up being determined by the European Court of Justice on behalf of the arbitration panel.

There has, he suggests, been a great deal of confusion about what the concept of “good faith” means in this context – perhaps due again to the limited time that people had to reflect on these documents and to predictable attempts by those interested in stopping Brexit in creating a “nothing has changed” narrative.

To be clear: to win a hypothetical case against the EU for breach of the “best endeavours in good faith” obligation, and of the separate obligation to implement the Withdrawal Agreement including the backstop in “good faith”, the UK would not have to demonstrate “bad faith” on the part of the EU in the English law sense of dishonesty, fraud or deceit.

In one of the cases cited by Verdirame, the most important international judicial body, the International Court of Justice, said: “The principle of good faith obliges the Parties to apply it [the Treaty] in a reasonable way and in such a manner that its purpose can be realised.” This means the EU could not merely sit back, wait for UK proposals on avoiding the backstop and then reject them all. It would have to be not only reasonable in considering UK proposals, but also proactive in advancing its own solutions, which could not amount to – as Verdirame puts it – just “backstop 2.0”, that is something which for all intents and purposes replicates the backstop. So as a result of the Strasbourg package, the EU could not simply insist that it could only replace the backstop with something that looks like a backstop, swims like a backstop and quacks like a backstop – i.e. a customs union.

Critics of the Prime Minister’s deal understandably felt they had far too little time to consider the legal implications of the changes secured at Strasbourg. Those changes were less than many MPs had hoped to see. The EU has refused to move to a proper time limit or a clear unilateral exit mechanism. But just because Brussels wouldn’t move all the way, oesn’t mean that what they offered wasn’t significant. Key EU member states strongly resisted the Commission’s move to make the commitments offered in a letter exchange back in January fully legally-binding. They did so because they knew that they strengthened the UK position.

Amidst the maelstrom of Tuesday’s Brexit drama in Westminster, it was easy to miss the reaction of the Irish opposition. Fianna Fail’s Brexit spokesperson, Lisa Chambers, noted that there had been changes and that “we have come a long way” from a “bullet-proof, rock-solid, cast-iron backstop”.

Where we have landed is with a package of legally-binding guarantees agreed at Strasbourg which substantially shift the UK’s position regarding the backstop. Neither the EU or the UK side now have quite what they want – both positions are sub-optimal.  But many of the legal risks for the UK have been substantially reduced, although not entirely eliminated. At a certain point in any negotiation or any decision the question must focus on the politics, not just the law. We are now there.

Garvan Walshe: Extension. A short one would serve no purpose. A longer one would bring Brexit’s reverse.

Honourable countries face up to the consequences of their actions. They don’t, like dilatory schoolboys late with their essays, simply ask for more time.

Garvan Walshe is a former National and International Security Policy Adviser to the Conservative Party. He runs TRD Policy.

A fresh rumour gathers strength in Brussels. People who had lost hope, in the EU itself and (it is said) some member states, have started to think that Brexit could be defeated. I use the word advisedly: not stopped — defeated. They hope for a long extension, enough for another referendum in which, they imagine, anti-Brexit forces would be successful.

Nothing will have pleased them more than Geoffrey Cox’s legal opinion that any changes to the Withdrawal Agreement the Prime Minister negotiated to the withdrawal agreement were cosmetic. In law, Cox was right. The agreement was not renegotiated. As Gil Scot Heron might have put it:

“You will not be able to amend, brother
You will not be able to seek new alternative arrangements
You will not be able to lose yourself in arbitratino
Skip out below a Unilateral Declaration
Because the agreement will not be reneogiated.”

The reasons the agreement will not be changed provide the honourable case for Brexit. This is an argument stripped of scare stories about straight bananas or unelected bureaucrats who turn out on closer inspection to be elected parliamentarians.

The honourable Brexit cause doesn’t need to drum up fears of a unitary superstate. Even the hybrid form of government into which the EU is evolving is not something it thinks Britain should be part of. We have our own history, looking outward across the seas to the island chain of our formal colonies to which we sent millions of emigrants – Australia, Canada, New Zealand and the United States, and from which, research from the Henry Jackson Society has found, the British would be happy to accept increase immigration.

And I’m sure this is the Brexit that my Brexiteer friends wanted when they campaigned to leave. They want a free and independent Britain making its own way in the world again. They didn´t think this country a mean-spirited nation unable to absorb newcomers, whov’ve done so much to make the country what it is. They don’t want to withdraw from the West: Britain’s strong armed forces should be a pillar of the alliance system. These are all honourable goals, and this Brexit is an honourable cause.

Yet if the EU is a political union, and Britain to be outside it, that changes the balance of power on our continent. A single economic superpower about the same size as the United States, with Britain to one side. A single entity capable of defending its interests, and those of its members against countries, like the UK, that have chosen to be on the outside. These are the consequences of leaving. Don’t think, as Remainers often do, that the EU is nice.

Honour knows that actions have consequences, and it’s necessary to bear them. This includes the reversal of the traditional balance of power between Ireland and the UK. This will have effects on Northern Ireland’s future. In finance, technology, and defence procurement, Europe’s rules will be set by the EU’s members and not by Britain. That’s the consequence of leaving — the price of freedom if you will.

Because honourable countries face up to the consequences of their actions. They don’t, like dilatory schoolboys late with their essays, simply ask for more time. A short extension to Article 50 won’t serve any purpose whatsoever; while a long one, which the EU would only grant to hold a referendum, risks Brexit’s defeat.

Parliament however is in dilatory schoolboy mode. It voted today on a motion to propose the oxymoronic “managed no deal”. It voted on a “standstill agreement” that the EU will not accept. It may eventually vote on whether to have a referendum, but only after the withdrawal agreement has been gone through. It may also vote on whether to pursue a Norway-style Soft Brexit, even though that requires the deal that it has just rejected to be approved. It may also vote for an essay extension. What unites them all is that they avoid the choice on offer: this deal, No Deal, or No Brexit.

And Parliament, having voted on Tuesday against the deal a second time, today voted against no deal and against no Brexit too. Having eliminated all other options, we’ll be exactly back to where we started: trying to Brexit without accepting the consequences of Brexit is the only thing that can command a consensus across the Commons.

Parliament seems unable to adjust itself to the central fact of a Brexit deal: it needs to be agreed with the EU, and the EU won’t agree anything that doesn’t involve Britain taking the consequences of its own decision to leave. The fact is that the deal on the table, which allows for a wide variety of outcomes to be negotiated over the next four years, is as good as it’s going to get. If you want to leave the EU, take this deal ,and start shaping Britain’s new phase of independence. Give yourselves a Brexit with honour. If you don´t, you could end up with a long extentsion and another referendum. If that happens, they’ll be cheering in Brussels, not Britain.

Bounced!

MPs have less than a day to study this revised deal. So today’s vote should be postponed. If it isn’t, they should withhold support from the Government.

The last minute dash to Strasbourg…the bear hug with Jean-Claude Juncker…the Brexit Secretary hovering in the background…the breathless claim of a breakthrough…the witching hour press conference, statement and documents…the claims of solemn binding legal changes…the Commons vote less than 24 hours later…the pressure on Conservative MPs to change their minds, back the deal, and get it all over with…the phone calls from the whips…from senior Ministers…pleas…threats…tears (sometimes all at once)…an oped piece for ConservativeHome…most of the Tory press lined up…Michael Gove on the Today programme.  Bounced!

The Great Squeeze is on.  Some will smell a rat, if not a conspiracy.

We doubt Downing Street’s capacity for organising a meticulously timetabled squeeze on the Commons.  None the less, the dramatic midnight hour deal is an EU speciality.  And to what degree the choreography was planned is beside the point, since the effect on MPs is the same regardless.

Each doubter is a wavering householder being pressed by a frantic insurance salesman.  Don’t wait! Sign now! Last chance!  In this case, the salesman will deploy inducements as well as menaces (“your talents, dear boy, are wasted on the backbenches”).

ConservativeHome’s snap take is as follows.  The Government says that legally binding changes have been made to the deal.  There are two main documents in relation to the Withdrawal Agreement itself and the backstop – a joint instrument and a unilateral declaration.  There is a target date for the backstop to end.  There will be an arbitration mechanism for the backstop.

Let us assume that all of these carry some legal weight – even the unilateral declaration, which the Irish Government is apparently dismissing as “the Brits talking to themselves”.  Such a claim should not be dismissed automatically.  Henry Newman and Guglielmo Verdirame have argued on this site that even the exchange of letters in January between the UK and the EU is of some legal significance.

The question that follows in each case is: how much legal weight?

After all, not a word of the Withdrawal Agreement has been changed.  The joint instrument and the arbitration mechanism are meant to do the heavy lifting: to empower the UK unilaterally to leave the backstop if necessary.  In very crude terms, the suggestion is the Withdrawal Agreement alone doesn’t give us that right; but that the Agreement, considered together with these new instruments, does.  We are very doubtful that they are fit for this purpose.

Others will be in the same state of mind – although it must be added that, in these circumstances, people tend to believe what they want to believe.  Those desperate for Theresa May’s deal to pass send for their favourite lawyers.  Those opposed to it – and not only because of the backstop – call for theirs.  Geoffrey Cox has yet to publish new legal advice.  We haven’t heard from Martin Howe.  The Brexiteering group of eight lawyers-come-politicians hasn’t pronounced.  Where is Nigel Dodds? At any rate, one has has vanished, before one knows it, into a Euro-version of Jarndyce and Jarndyce.

Amidst all these doubts, however, there is a certainty.

Namely, that MPs asked to make their minds up today are being put in the same position as Cabinet Ministers were about the original Withdrawal Agreement and Political Declaration texts.  Just as the Cabinet had less than a day to consider these, so the Commons will have less than a day to scrutinise their successor – scores of pages of unscrutinised documentation.

This timetable is clearly inadequate, whatever prejudice you may come to the new documents with; whether you are a Remainer or a Leaver; whether your instincts favour Norway Plus or a Second Referendum or No Deal or a revised agreement whether you are Peter Bone or Dominic Grieve.

So the 118 Conservative MPs who voted against the Government last time round – and others – should push back against the Great Squeeze and refuse to be bounced.  They should support moves to bring the Attorney-General to the Commons this morning.  The mere publication of new advice is not enough.  He must be quizzed about it, and at length.  Happily, the Speaker will doubtless oblige an Urgent Question if necessary.

But even the most scrupulous and exacting interrogation of Cox will not give the Commons the time it requires.  Yesterday evening, Lidington was clinging to a Commons timetable set out before the revised deal was agreed.  This is absurd.

The vote this evening should be pulled, and MPs given, say, a couple of days to read the documents, summon Ministers for statements, weigh the mood of their Associations and constituents, and weigh up what to do.  The House could vote on Thursday evening.

Until or unless the business is changed, Tory MPs should withhold their support from May, the Government and the deal.  Abstention is in order.  That would pave the way for May’s revised deal to be brought back a third time – if they conclude, after a day or two’s deliberation, that “something has changed”.  But if Downing Street digs in, they must presume that the Prime Minister’s better-known formulation still applies.

Theresa May: Why the Commons should vote for this improved Brexit deal today

We have secured legally-binding changes which address MPs’ concerns about the need to protect the UK from being stuck in the backstop against its will.

Theresa May is Prime Minister and is MP for Maidenhead.

When MPs pass through the lobbies of the House of Commons this evening, the fundamental choice they will face is whether or not to implement the decision of the British people who voted for Brexit.

I know that many ConservativeHome readers have had concerns about some of the detail of the agreement which was reached between the United Kingdom and the EU at the end of last year. But the deal that MPs will be voting on tonight is an improved Brexit deal containing crucial hard won changes.

Since the original deal was rejected in January, I have met MPs from all sides of the House. I have listened to their concerns – and I have taken those concerns to the EU, the biggest of which was that we may become trapped in the so-called backstop indefinitely. I have held more than 40 conversations with my fellow EU leaders on the telephone and in person. Along with the Attorney General and the Brexit Secretary, I have fought hard and explored every idea and avenue to secure the changes which Parliament requested.

Last night, following a face to face meeting with Jean Claude Juncker, I was able to announce that we have secured legally-binding changes which address MPs’ concerns about the need to protect the UK from being stuck in the backstop against its will.

First, there is now a legally-binding joint instrument — with comparable legal weight to the Withdrawal Agreement – which will guarantee that the EU cannot act with the intent of applying the backstop indefinitely. If they do, it can be challenged through arbitration and if they are found to be in breach the UK can ultimately suspend the backstop.

It also includes a legally binding commitment that both sides will work to have alternative arrangements in place to replace the backstop by December 2020, so that it never needs to be used. Furthermore, it confirms that whatever replaces the backstop doesn’t need to replicate it.

And it entrenches in legally-binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January.

Second, alongside this new joint instrument, the United Kingdom Government will make a Unilateral Declaration that if the backstop comes into use and it does not prove possible to negotiate a subsequent agreement, it is the position of the United Kingdom that there would be nothing to prevent the UK instigating measures that could ultimately dis-apply the backstop.

Third, the UK and the EU have made a joint statement in relation to the Political Declaration.

It sets out a number of commitments to enhance and expedite the process of negotiating and bringing into force the future relationship. This includes beginning the work to replace the backstop with alternative arrangements immediately. There will be a specific negotiating track on alternative arrangements from the very start of the next phase of negotiations. It will consider facilitations and technologies – both those currently ready and emerging.

The UK’s position will be informed by the three domestic groups announced last week – for technical experts, MPs, and business and trade unions. I would urge MPs now to study these changes in detail in advance of the Meaningful Vote.

Back the improved deal and we are out of the EU. We will take back control. We will regain control of our laws, by ending the jurisdiction of the European Court of Justice in the UK. For the first time in decades, we will be in control of our borders – ending free movement. The days of making vast annual payments to the EU will be over.

We will be outside of the Common Agricultural Policy and the Common Fisheries policy — once again becoming an independent coastal state and bringing an end to the hardship inflicted upon our fishermen.

Crucially, we will have our own independent trade policy, outside of the Customs Union and able to sign ambitious deals with friends old and new.

Reject the deal, however, and we do not know what the consequences may be. We would face delay and spend months going over the same arguments again and again. We may leave without the protections for jobs and security which the deal provides. We may never leave at all.  None of those outcomes is attractive – and they run contrary to the message that I have heard time and again from people and businesses up and down the country that what they want is for MPs to get on with the job of delivering Brexit.

Now is the time to come together, bring an end to the uncertainty and get this deal done. Tonight, there is a chance to take a decisive step towards delivering on the result of the referendum and setting this country on course for a brighter future. I urge all my colleagues to take that step – and vote for this improved Brexit deal.

Anna Nadibaidze: Where do the other members of the EU stand on the question of an Article 50 delay?

It would need unanimous agreement. Looking at each of the 27’s varying comments, there are six distinct camps of opinion.

Anna Nadibaidze is a Research and Communications Associate at Open Europe. This article first appeared on the Open Europe blog.

Following Parliament’s vote to seek a Brexit delay is approved by Parliament, the proposal then needs to be agreed unanimously by all EU27 member states at the next European Council.

There is a general consensus that if the UK proposes a delay, member states will not oppose it. At least 18 member states have publicly said that they would welcome, or at least not block, an extension. No member state has categorically ruled out a delay, although some leaders expressed concern about the prospect of prolonging Brexit uncertainty.

However, there are different opinions across the EU27 about the reasons for which an extension could be desirable or allowed, as well as the possible length of any extension. Open Europe has looked at the statements and positions of all 27 member states to assess which conditions they may demand in exchange for agreeing an extension.

Main findings

While it has been argued on the Brexiteer side that a 21-month extension could be desirable in order to facilitate a ‘managed’ No Deal Brexit in 2021, it is very unlikely the EU27 will agree such terms for a delay. The vast majority of member states have committed to avoiding a No Deal scenario.

Theresa May suggested in a speech on 8th March that in order to agree an extension of Article 50 member states could ask further conditions, such as “no end to free movement [of people], no taking back control…or a second Brexit referendum.” However, it seems likely that these assertions were aimed at a domestic political audience. For most member states, the most important condition remains for the UK to provide clarity and guarantees that extending Article 50 will actually help Theresa May get her deal through the House of Commons. As Nathalie Loiseau, France’s European Affairs Minister, said, “A credible extension must meet the majority of the UK Parliament.”

Michel Barnier said that if the UK requests a delay, the EU27 will “immediately ask ‘What for’?” The answer that the UK provides to that question is likely to determine the length of the extension. For instance, if the extension is “technical” and serves the purpose of passing the necessary domestic legislation, it is most likely to be a short extension of weeks or months.

Some member states, such as Austria and Germany, have stressed that there should be no extension beyond the European Parliament (EP) elections in May, suggesting that the delay could only be a short one in any scenario. However, others, such as Luxembourg and Ireland, have suggested that if the UK provides a valid reason for extension, the obstacle of elections could be overcome.

Some leaders have said they would like to see a second referendum in the UK; this implicitly means support for a longer delay to Brexit, as it is estimated a referendum will take at least six months to implement. Meanwhile, it has been reported that member states such as France would also prefer a longer delay in order to avoid the UK asking for repeated extensions.

Finally, there are figures such as Charles Michel, the Belgian Prime Minister, and Dalia Grybauskaitė, the Lithuanian President,  who have suggested that a No Deal Brexit could be better than continued uncertainty, if there is no valid reason for a delay. However, they are unlikely to veto an extension if the consensus among other member states is for one.

In this table, Open Europe categorises statements made by officials and leaders from EU27 member states about the conditions to be fulfilled in order to extend Article 50. These categories are not mutually exclusive and are based on the main statements that leading politicians and officials from the member states have made in the last weeks and months.

The bigger picture: EU27 motivations

Despite the different views held by different member states, any extension will be a common EU decision. There are broadly three motivations on the EU27 side:

  • Avoiding the chaos of a No Deal exit at the end of March, while also avoiding any practical difficulties relating to the European Parliament elections. This lends itself to a short extension, which would have to have a clear purpose and would last no later than the end of June.
  • A few member states also hold out limited hope that the political weather in the UK might change, towards either a much softer Brexit or a second referendum. This lends itself to a longer extension, beyond the European elections.
  • Maximising pressure on UK MPs to vote for the deal. This lends itself to the threat of a longer extension, perhaps in the hope that MPs will reject this offer and back the deal instead.

These motivations are not mutually exclusive and some member states hold more than one of them. Taken together, there may yet be the prospect of a ‘two-pronged’ offer from the EU on extension – under which the extension would be a technical, short one of up to three months if the deal is passed by a certain date, but much longer (between 9 and 21 months) if it is not.

Statements and analysis for each EU27 member state are outlined below.

Austria 
Will support an extension, but not beyond European elections and only with clear goal

Sebastian Kurz, the Austrian Chancellor, has been one of the leaders urging to avoid a No Deal and openly calling for an extension if the Brexit impasse is not solved. In January, Kurz said, “We should have the courage to defer the date of Brexit” if the UK Parliament cannot reach agreement on the Brexit deal, adding that the condition would be “only until European elections in May.”

On February 28, during a meeting with Barnier, Kurz said, “If more time is needed, if it’s not possible to make this regulated Brexit happen till the end of March, we will support an extension. Of course this extension can only take place if Theresa May wants it and puts forward a motion. If this extension should take place it is also necessary to ask the question ‘what is the goal for the time frame, what good does this extension do?”

Belgium 
Not against a delay, but Belgian Prime Minister has warned against a “bad deal”

Belgium is set to be one of the member states that will be the most affected by a No Deal. Deloitte places it as the 4th country most affected and the Ifo Institute estimates the economic impact at 1.4 per cent of Belgium’s GDP. Both government officials and business groups have been warning about the impacts for ports, the Eurostar, and jobs, especially in the Flanders region. These factors make it unlikely that Belgium could place severe constraints on an extension.

Didier Reynders, the Foreign Minister,  said, “We are not against [a delay]. Of course it will be easier to do that with a roadmap, knowing what we are doing in fact. Because if it is just to prolong the result … it’s more difficult. Like some weeks ago, we are waiting for some decisions in London. It will be that, the first step.” However, Charles Michel, the Belgian Prime Minister, previously said that if the UK leaves without a deal on 29th March, this would at least provide some clarity. He also said on 12th February that if he needed to choose between a No Deal Brexit scenario and a “bad deal,” he would prefer No Deal as “it would mean clarity and responsibility.”

Bulgaria
Open to an extension, but with a clear goal

Ekaterina Zaharieva, Bulgaria’s Foreign Affairs Minister, said, “We are open to an extension of Article 50 but this extension should be with a clear and firm aim — an orderly Brexit to be achieved.”

Croatia 
Regrets Brexit, but aims for it to be done in an orderly way

Andrej Plenkovic, the Croatian Prime Minister, said in February that Croatia “regrets the decision” of the UK to leave, adding, “We think it is not good, it is indeed bad both for Britain and for the EU, but we are working with other members to ensure that it is conducted in an orderly fashion.”

Cyprus
No explicit position, but unlikely to impose conditions

The UK and Cyprus have a strong historical relationship, specifically characterised by two UK sovereign bases located in Cyprus which would be severely affected by a No Deal. However, these relations are unlikely to have much bearing on extending Article 50.

At a meeting with Theresa May on 5th March, President Nicos Anastasiades suggested that “neither Brexit nor the European Parliament elections should be considered a reason for delay” in the ongoing Cyprus settlement talks.

Czech Republic 
Would not oppose an extension, especially if it is to hold a second referendum

In the past Andrej Babiš, the Czech Prime Minister, expressed support for a second referendum. He said in November 2018, “It would be better maybe to make another referendum and maybe the people in the meantime could change their view.” He also voiced concern about the rights of Czech citizens working and living in the UK, and said, “We have to work to ensure that this threat [of a No Deal Brexit] does not become a reality for our people working in Great Britain.”

Denmark 
Aims for an orderly Brexit

The Ministry of Foreign Affairs’ website states that the Danish government still aims for 29th March as the UK’s exit date but also emphasises that it wants an orderly exit with continued close ties between the EU and UK. It also states that Denmark, though traditionally a strong ally of the UK, aligns itself with EU27 and Barnier, suggesting that it is unlikely to voice specific concerns about extending. Previously, Anders Samuelsen, the Foreign Minister, warned that “Brexit could have significant consequences for the Danish economy.”

Estonia 
Concerned about No Deal

Kersti Kaljulaid, Estonia’s president, took a hard line on the Irish backstop, but also voiced concern about No Deal, saying in February, “We are all concerned … A No Deal Brexit – if it will happen – will be a huge problem. It would be terribly difficult administratively.”

Finland 
Would be open to a short extension, if there is a valid reason

Prime Minister Juha Sipilä told Politico in early January that Finland would accept a delay to Article 50 if there is a “reason for extra time.” However he criticised the fact that “Brexit has taken too much time from our decision-making process,” referring to issues like growth, security, and migration, adding, “I hope that this issue will be off our table as soon as possible.”

France 
Demands a clear reason for an extension, and would prefer a longer delay

France’s position seems to be stricter than the rest of the EU27, although the French government has not ruled out an extension altogether. Emmanuel Macron said in a press conference with Chancellor Merkel at the end of February, “We would support an extension request only if it was justified by a new choice of the British…But we would in no way accept an extension without a clear objective.”

A No Deal would have grave consequences for the French economy, with only a third of French businesses estimated to be ready for such a scenario. However, there remains a probability of France pressing with demands with regards to fishing and access to UK waters, or other specific conditions, in exchange for a delay.

In January Macron raised the possibility of the extension “stepping over the European elections in order to find something else,” while French officials have suggested that a longer extension would be preferable to a shorter one. Nathalie Loiseau, the European Affairs Minister, also said the UK holding EU elections “is not a problem for the European Union, but it might be weird for the UK during a process of withdrawal from the EU to organise a European election.” On a visit to London on 7th March, Loiseau said, “Why would be there be an extension without a reason? We have been in discussions for quite a long time now. There needs to be something specific to justify an extension,” adding, “A short extension: why not, if there is a good and credible reason.”

Germany 
Open to a short extension, if the UK has a plan

Angela Merkel has been warning about the impacts of No Deal and reiterating that Germany “wanted to do everything to avoid a No Deal.” On a possible extension, Merkel said in February, “If the UK needs a bit more time, we won’t say no. But we want an orderly withdrawal of the UK from the EU.”

However, Michael Roth, the European Affairs Minister, also said in February, “An extension would only make sense if we have new substantial ideas on the table. Otherwise there’s no point…The deadlines are very clear: if there is a substantial extension, for example past 1st July, then of course there will also have to be [European Parliament] elections in Great Britain, but I don’t want to speculate about this.”

Greece 
Seeks an orderly Brexit

Announcing protection of citizens’ rights in a potential No Deal, George Katrougalos, the Foreign Minister, emphasised that an “orderly” exit “without major disruptions” would be the best scenario. Greece is also concerned about the economic impacts of a No Deal, but is unlikely to be seeking to impose further conditions.

Sia Anagnostopoulou, the Alternate Minister of Foreign Affairs, warned on 6th March, “The only sure thing is that in order to limit the negative effects of Brexit, the withdrawal must be carried out in an orderly manner, based on the EU-UK Withdrawal Agreement.”

Ireland 
Not opposed to either a short or a long extension, if it helps reach a deal

As Ireland is set to be the EU27 member state affected the most by No Deal, not only in economic terms (23.5 per cent of Ireland’s GDP comes from trade with the UK), but also in terms of the border with Northern Ireland. The priority of the Irish government remains to avoid a hard border, and for this reason the Irish Taoiseach also suggested Ireland would be open to a longer extension.

In January, Simon Coveney, the Foreign Minister, said, “If it is the case that in some point in the future the British Government seeks an extension of Article 50, that will have to have EU approval, but that is not something we would stand in the way of.” Coveney also said there would be a “generous response” to an Article 50 extension,” adding, “With the practicalities around European elections, the establishment of a new European Commission … there is a natural extension date until the end of June perhaps but that is a matter for the British Prime Minister and British parliament.”

Leo Varadkar struck a slightly different note in February, saying that an extension is not “inevitable. It’s certainly possible. If there is going to be an extension, it needs to be with a purpose, it needs to be with a view to securing and ratifying an agreement. I don’t think anyone would like to see this stalemate or impasse or period of purgatory continue for months and months and months.” However, Varadkar also saidat the end of February, “I’d certainly rather see an extension than seeing the UK leave without a deal. A long extension creates a complication in relation to the European elections, but that’s a small complication relative to the impact on our economy.”

Italy 
Emphasises importance of orderly exit

Giuseppe Conte, the Italian Prime Minister,  said in a phone call with Theresa May that the UK’s withdrawal should be done in an orderly manner, emphasising that a No Deal scenario should be avoided.

Enzo Moavero Milanesi, the IForeign Minister, warned in February especially about the impact of No Deal for both sides’ citizens. He said, “We hope there will be no brutal severing of the relationship between Britain and the EU, given that many Italian citizens live on the other side of the channel and there are many Britons living in Italy,” adding that Italy has “strong economic interests” in and “a positive trade balance” with the UK. He also discussed “A possible extension of Britain’s withdrawal from the EU beyond March, which remains a possibility under Article 50 of the Treaty on European Union and which requires the European Council’s unanimous accord.”

Hungary 
Wants to avoid No Deal at all costs

Historically, Hungary has been an ally of the UK within the EU, and Viktor Orbán has called on the EU “not to punish the UK” for its decision to leave. The country has also voiced concerns about No Deal, with Péter Szijjártó, the Foreign Minister,  calling it a “disaster” and saying, “We have to avoid a situation without a deal by all efforts.” He also said in June 2018, “Hungary regards the maintaining of security cooperation with Great Britain as extremely important.”

Latvia 
Does not rule out extension if it helps reaching an agreement

Edgars Rinkēvičs, the Latvian Foreign Affairs Minister, said in January, “Considering the incredibly complicated situation, we have to consider ways to avoid making the situation even more complicated. If there is an opportunity to resolve problems or reach an agreement, I see no reasons why talks could not be extended.”

Baiba Braze, Latvia’s ambassador to the UK, recently said he “does not recognise” reports that the EU27 will demand strict “legal and financial conditions” in exchange for an extension.

Lithuania 
Reluctant to prolong uncertainty

President Dalia Grybauskaitė has suggested No Deal would be better than a chaotic delay, saying in January, “The more we will be trying to extend any kind of uncertainty, the worse it will be for both sides. And in that case, it’s better to finish this chaos sooner even with no deal, or with any kind of deal.” However, other statements by Lithuanian officials are not necessarily consistent with this.

Luxembourg 
Does not rule out an extension, specifically if another public vote is held

Foreign Minister Jean Asselborn said on 18th January, “Only the initiative to hold a second referendum could be an indication to extend Article 50. Maybe it is a bit daring to say so. But it seems obvious that something strong needs to be behind the idea to tinker with Article 50.” He also told Politico, “If the UK were to decide to hold a second referendum and request an extension of Article 50 to carry out this process, we would respond favourably,” but only “provided that such a solution would be limited in time, and justified by a clear perspective and a realistic assurance that a rules-based process will be sought.”

Xavier Bettel, the Prime Minister, reportedly said that the UK could nominate MEPs “for a very short period,” suggesting that the stumbling block of European elections could be overcome.

Malta 
Does not rule out extension, supports a second referendum

Prime Minister Joseph Muscat supports an extension of the Brexit deadline in case the UK requests it and said the EU should “definitely give [Theresa May] more time,” while ruling out the prospect of renegotiating the Withdrawal Agreement.  He said, “It’s not an issue of whether we lose a couple of millions [of euros] here or there … I don’t think we can fudge on principles.”

Previously, Muscat has voiced strong support for a second referendum, saying at the Salzburg Summit in September 2018, “There is a unanimous – or almost unanimous, I would say – point of view around the table that we would like the almost impossible to happen, that the UK has another referendum.”

Netherlands 
Demands clarity on the reason why the extension would be needed

As the Dutch economy and specifically the Netherlands’ ports face important risks in case of No Deal, the Dutch government is unlikely to impose strict conditions for an extension.

However, Mark Rutte, the Dutch prime minister, has said the UK would have to explain “what [the extension] is for,” adding, “the EU could not… just spend another couple of months going round in circles.” He told the BBC, “It’s up to the UK. If the UK ask for delay, the EU will ask what do you want with it? We don’t want to go round in circles for the next couple of months. What will be achieved by it?”

Poland 
Will not risk a No Deal by opposing extension

Jacek Czaputowicz, the Polish Foreign Minister, said Poland would support delaying Brexit “if it helps work out a better position,” adding, “What is very important for us is that there should not be a No Deal Brexit…This would not be advantageous for the European Union, for Great Britain or for Poland.”

Prime Minister Mateusz Morawiecki has also previously criticised the EU for being harsh towards May, which might suggest his country would be sympathetic. He said, “Strong statements and harsh words of some politicians in Brussels do not help, but hinder our common goal in achieving the most desirable outcome for all.”

A Polish-born Conservative MP has repeatedly lobbied the Polish government to veto an Article 50 extension. However, there is little evidence Poland is taking this seriously – the suggestion has been shot down by government sources. In addition, the Centre for European Reform’s Charles Grant has reported that the Polish Government is happy to agree to an Article 50 extension – they would “prefer” a short one, but could “live with” one which went beyond the European Parliament elections. According to Grant, Warsaw believes that Brussels “exaggerates the complication of the UK needing to choose MEPs.”

Portugal 
Demands alternatives from the UK

In January, Augusto Santos Silvas, the Portuguese Foreign Minister, said on Portuguese radio, “Only if UK asks for a delay to present alternatives to their ‘red lines’ and presents clear alternatives to the backstop, we are then going to listen and give our position.”

However, given the concerns about the impact of No Deal for citizens’ rights and for the tourism industry, Portugal is unlikely to present strict conditions for the extension.

Romania 
As current EU Council president, would not oppose will of EU27 to extend

Romania currently holds the rotating presidency of the Council of the EU, and although this role is largely symbolic and limited, it will have a role in forging  a consensus among member states. George Ciamba, Romania’s minister for European affairs, told Reuters on 27th February that Romania, as the current holder of the EU’s rotating presidency, was still making plans for a disorderly Brexit but was more optimistic after Theresa May paved the way for a delay beyond the planned Brexit date of 29th March. He also said that if there was political will, the obstacle of European Parliament elections could be overcome.

Slovenia 
Open to an extension, but demands a compromise from the UK

President Borut Pahor told Sky News on 2nd March, “I think Slovenia and a lot of other countries would say yes [to an extension]. I think that nobody wants to see a hard Brexit in a chaotic way.” However, he demanded clarity and consensus from the UK Parliament, saying, “It is not clear at the moment if United Kingdom has a clear position on some sort of compromise solution and if it fits the requirements of the majority in the House [of Commons].” He also warned about Brexit being an issue for European parliament elections, “If Brexit would become an issue of political campaign among the 27 (member states), I think this could even make more difficult the whole framework of negotiations between London and Brussels.”

Slovakia 
Demands a clear reason for extending

In January, Miroslav Lajcak, the Slovak Foreign Minister said the EU shouldn’t just “extend the agony” of Brexit, but “If there is a good reason [for an extension], then yes.”

Throughout Brexit negotiations, Slovakia as well as other Central and Eastern European (CEE) countries have prioritised citizens’ rights and have warned of the impact of No Deal for their citizens living in the UK. The European Bank for Reconstruction and Development (EBRD) estimates that CEE as a whole could have a 4-5 per cent smaller GDP by 2021 in a No Deal scenario.

Spain 
Will not oppose extension, but could demand conditions

In the previous stage of negotiations, Spain has been threatening to block progress by demanding concessions on the post-Brexit status of Gibraltar; there is a possibility they could revive such demands again in exchange for an extension. On the other hand, Spain also has concerns about the impacts of a No Deal scenario, particularly for citizens’ rights and the tourism industry.

Prime Minister Pedro Sanchez said in February there needed to be conditions to extend Article 50, as “prolonging the uncertainty by postponing deadlines is not a reasonable or desirable alternative.”  He added, “I want to make clear before this possible position of the British government, that although Spain is not going to oppose the concession of an eventual extension, it must have a certain perspective of resolution.”

Sweden 
Supports an extension if there is clarity about the process

Jan Olsson, Sweden’s Brexit spokesperson, said, “We [on the Swedish side] generally assess that the prerequisites [for an extension] exist if it becomes a clear process.”

WATCH: May’s Dash for a Deal 7) “We needed legally binding backstop pledges and “today, we have agreed them.”

She says that a new target date of December 2020 for its end has been agreed by both parties to the talks.

May’s Dash for a Deal 6) She says the Government now believes that the UK could disapply the backstop. Her statement.

That’s “the position of the United Kingdom”. But is it that of the EU too?

“Last November, after two years of hard-fought negotiations, I agreed a Brexit deal with the EU that I passionately believe delivers on the decision taken by the British people to leave the European Union.

Over the last four months, I have made the case for that deal in Westminster and across the UK.

I stand by what that deal achieves for my country.

It means we regain control of our laws, by ending the jurisdiction of the European Court of Justice in the UK.

Regain control of our borders, by ending free movement.

Regain control of our money, by ending vast annual payments to the EU.

The end of the Common Agricultural Policy and the Common Fisheries Policy for British farmers and fishermen.

An independent trade policy.

And the deal sets us on course for a good future relationship with our friends and allies in the EU.

A close economic partnership that is good for business.

Ongoing security co-operation to keep our peoples safe.

The deal honours the referendum result and is good for both the UK and the EU.

But there was a clear concern in Parliament over one issue in particular: the Northern Ireland backstop.

Having an insurance policy to guarantee that there will never be a hard border in Northern Ireland is absolutely right – it honours the UK’s solemn commitments in the Belfast/Good Friday Agreement.

But if we ever have to use that insurance policy, it cannot become a permanent arrangement and it is not the template for our future relationship.

The deal that MPs voted on in January was not strong enough in making that clear – and legally binding changes were needed to set that right.

Today we have agreed them.

First, a joint instrument with comparable legal weight to the Withdrawal Agreement will guarantee that the EU cannot act with the intent of applying the backstop indefinitely.

If they do, it can be challenged through arbitration and if they are found to be in breach the UK can suspend the backstop.

The joint instrument also gives a legal commitment that whatever replaces the backstop does not need to replicate it.

And it entrenches in legally-binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January.

Second, the UK and the EU have made a joint statement in relation to the Political Declaration.

It sets out a number of commitments to enhance and expedite the process of negotiating and bringing into force the future relationship.

And it makes a legal commitment that the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020.

There will be a specific negotiating track on alternative arrangements from the very start of the next phase of negotiations.

It will consider facilitations and technologies – both those currently ready and emerging.

The UK’s position will be informed by the three domestic groups announced last week – for technical experts, MPs, and business and trade unions.

Third, alongside the joint instrument on the Withdrawal Agreement, the United Kingdom Government will make a Unilateral Declaration that if the backstop comes into use and discussions on our future relationship break down so that there is no prospect of subsequent agreement, it is the position of the United Kingdom that there would be nothing to prevent the UK instigating measures that would ultimately dis-apply the backstop.

Unilateral Declarations are commonly used by states alongside the ratification of treaties.

The Attorney General will set out in legal analysis the meaning of the joint instrument and unilateral declaration to Parliament.

Tomorrow the House of Commons will debate the improved deal that these legal changes have created.

I will speak in more detail about them when I open that debate.

MPs were clear that legal changes were needed to the backstop.

Today we have secured legal changes.

Now is the time to come together, to back this improved Brexit deal, and to deliver on the instruction of the British people.”
 

Henry Newman: Thirteen myths about the Prime Minister’s deal

It is not always given a fair assessment, particularly against the other options actually available. Those open to persuasion should look at the facts before it’s too late.

Henry Newman is Director of Open Europe.

One of the strange things about the Brexit debate at the moment is the persistence of certain idées fixes about the Prime Minister’s Brexit deal and about its alternatives which are repeated by critics. There are of course principled reasons for opposing the deal – and Paul Goodman outlined his view this morning. But there are also various confusions. Here is a mythbuster of a Brexit dozen of them:

Myth 1 – The deal isn’t Brexit. This is often repeated; yet it is simply preposterous. The deal would take the UK out the EU. We would no longer be a member state, and would have no commissioner, no MEPs, no compulsory financial contributions (once our exit bill is settled), and no voting rights. We would basically be out of the EU legal order, with a treaty relationship with it. Yes, there would be some ongoing constraints – most notably through the backstop protocol – but the deal is Brexit.

Myth 2 – The deal would mean Brexit In Name Only (BRINO) or staying in the Single Market. Again, this is untrue. The deal takes us definitively out the Single Market. Even in the backstop, we would be free of practically all Single Market rules and could end free movement and diverge on services. The main exception is that we would have to maintain the stock of existing goods and agriculture rules in Northern Ireland (plus a few other rules around the Single Energy Market and so on). We could reject any new goods or agriculture rules from applying anywhere in UK, although we would be obliged to follow updates at least in Northern Ireland.

Myth 3 – The UK would be a vassal state. How? After the standstill 21-month transition, we would be free to reject new EU rules in almost all areas, even if we ended up in the backstop. We wouldn’t have to pay ongoing membership contributions; we would keep all the customs revenue we collected (rather than ‘sending’ the majority to Brussels as we do now).

Myth 4 – The UK will have to join a customs union to leave backstop. A future Government could opt to join a customs union to escape the backstop (though this would leave regulatory issues unsolved). But we couldn’t be forced to do so. In the Political Declaration, the EU accepts that the “future relationship” will “respect the result of the 2016 referendum including with regard to the development of its [the UK’s] independent trade policy” and the EU note that “any arrangements which supersede the [backstop] Protocol are not required to replicate its provisions in any respect, provided that the underlying objectives continue to be met”.

Myth 5 – In the backstop, every consignment passing from Great Britain to Northern Ireland or the EU will require a physical certificate to be wet stamped (as in using ink). This is wrong. It is true that there will be some documentation required, but the UK has stated that this will be electronic. And of course, a technological solution to the Irish border – such as Max Fac – would also require documentation. The only way to ensure entirely frictionless trade with the EU is to stay in both the Single Market and Customs Union, which the UK rejects.

Myth 6 – The backstop means a “hard” border in the Irish Sea. No. Some regulatory checks will be required, but these will be primarily in market (for goods) and conducted by UK (not EU) authorities. There will be some additional checks on agricultural products (SPS checks) crossing the Irish Sea, but there are already some such checks. As per Myth 5, there will need to be some certification for customs agreed, but it won’t be wet stamped & should be electronic. In the backstop, there can be no tariffs or origin requirement rules on any intra-UK trade.

Myth 7 – The backstop is unique because it doesn’t have a unilateral exit mechanism. In reality, there are many examples of treaties without clear exits – the UN Charter, the Belfast / Good Friday Agreement, the International Covenant on Civil and Political Rights, the NATO Charter. The UK should seek a better exit, but to say it is unique in not having one is wrong.

Myth 8 – The UK wouldn’t be able to do trade deals while in the backstop. It’s true that we would not be able to offer to lower our tariffs on goods/food, but we could sign and implement deals on services, customs procedures, investor protections and qualification recognition. And, as per Myth 4, the EU recognises that an objective of the future relationship is an independent trade policy for the UK allowing us to do comprehensive trade deals.

Myth 9 – in the event of No Deal, the UK could use GATT Article XXIV to secure interim tariff free trade with EU. This article can only apply if the EU agrees, and they have so far been clear they won’t. It is strange for critics to complain of EU intransigence, yet also assume that it would play ball in the event No Deal.

Myth 10 – in the event of No Deal the UK could keep the £39 billion Brexit bill. This only works if you want Never Deal, not No Deal. Even if the UK walks away, we are going to end up settling accounts before we do a trade deal with EU. Anyway, half the money is to pay for the standstill transition we requested.

Myth 11 – if the UK signs the deal we will be forced to jeopardise Five Eyes, join an EU army, or lose control of our benefits system and taxation. I can find almost no factual basis for these odd assertions. Some are drawn from confused misreadings of the non-binding political declaration.

Myth 12 – the Conservative manifesto committed the Government to No Deal. The manifesto actually said no deal is better than a bad deal – and the Government view is this isn’t a bad deal. The manifesto also committed to leaving the Single Market and Customs Union. This deal takes the UK out the Single Market; and the political declaration points to a destination outside the customs union too. Moreover, the Tories didn’t win a majority in 2017 so it’s hard to implement the manifesto. Plenty of other bits of the manifesto have fallen away for obvious reasons, from social care to boundary reviews.

Myth 13 – there’s a mandate for No Deal. In fact, Vote Leave promised a deal. It said that the UK would join a free trade zone from Iceland to Russian border – this deal provides for that.

In sum, there are many myths about the Prime Minister’s deal and its alternatives. It’s certainly not perfect, and some aspects of the backstop are uncomfortable and sub-optimal. Much would be improved by a sharper exit mechanism. Nonetheless, it often seems that the deal is not given a fair assessment, particularly against the other options actually available. Some critics clearly have something approaching a pathological mistrust of EU. Others have made a good faith decision to oppose it, on balance. But for those open to persuasion, look at the actual facts of the deal before it’s too late.

Dinah Glover: Party members’ message to May. Amend the backstop – or drop your deal.

As the motion that was passed by the National Convention says, Conservative MPs need to honour their manifesto pledges.

Dinah Glover is Chairman of London East Area Conservatives and of Bethnal Green and Bow Conservative Association.

Two weeks ago, a motion that I presented to the Party’s National Convention meeting passed with overwhelming support and since then, thanks to ConservativeHome’s encouragement, Associations around the country have been tabling the motion at their AGMs.  It said that we must honour the EU referendum result – otherwise democracy will be damaged for a generation. But what does that mean? It means that we have to become a sovereign nation again: not a nation in a semi-detached relationship with the EU, joined to it, but with no control over whatever emanates from its institutions.

The EU has, by using the Irish border as a negotiating, political and emotional tool, caught us in what has become known as the backstop. If we enter it, there will currently be no guaranteed exit without the acquiescence of the EU – and, after all, why would it easily let us out of the backstop since it would put us where they want us, namely in that semi-detached condition.
We would still be adhering to EU rules but now with no say, unable to do meaningful trade deals with the rest of the world – and thus losing one of the most obvious advantages of leaving the EU. Not only would this settlement be a lesson to the other countries who might want to leave the EU in the future, but it might well leave asking to rejoin the EU, down the line, on terms surely less advantageous terms than those we currently have.

This is why it is crucial that our negotiating team agree either a legally binding termination point to the backstop or the right to a unilateral exit. Without one of these, the Commons surely cannot pass the Withdrawal Agreement without huge risk for our country.  For once it is enshrined in legislation, it will become an international treaty – and there will be no going back.

MPs in our Party who support taking No Deal off the table are helping to ensure that the EU will not agree to our requests regarding the backstop. I’m afraid that the three ‘kamikaze” Cabinet Ministers – Amber Rudd, David Gauke and Greg Clark, all of whom have demanded a Commons vote to rule out No Dea,l are partly responsible for the lack of progress we read Geoffrey Cox has made in Brussels.

For the British people to believe that we are delivering Brexit, they have to see that we are en route to making a clean break with the EU. This will not mean only that we will no longer elect MEPs.  It will also mean that our future relationship will be based on a trade deal.  That might lead to regulation in some areas aligning, but the arrangement will be a mutually symbiotic trading relationship, not Britain being part of a political project, either as a fully paid up member, as we are now, or as a semi-detached member – paying but not voting, which we may well be on track to becoming.

As the motion that was passed by the National Convention says, Conservative MPs need to honour their manifesto pledges, both of 2015 (namely, that the referendum result be implemented) and of 2017 (namely, that we will leave both the Customs Union and the Single Market.

If the legally binding exit route from the backstop cannot be achieved, then MPs should support leaving on March 29th without the Withdrawal Agreement. We need to be clear: a delay will not deliver a change of mind in the EU.  At best, it would delay Brexit; at worst, an it would provide opportunities to thwart it.