Archive for the ‘negotiations’ Category

Brexit delay shreds Theresa May’s strategy

LONDON — The world could look very different by the end of the week.

Despite fevered speculation in Westminster about the prospect of a third vote on Theresa May’s Brexit deal, the stark reality facing MPs over the next 48 hours is that if EU leaders agree later this week to extend Article 50, Brexit is automatically delayed — and March 29 disappears as a meaningful deadline.

The consequences of putting off Brexit day are potentially profound, yet barely acknowledged in Westminster, where many Brexiteers remain confident Britain will depart the EU with or without a deal on March 29, particularly after Monday’s bombshell ruling from House of Commons Speaker John Bercow curtailing the government’s scope to bring back the same deal for further votes.

However, if EU leaders agree to scrap March 29 as exit day — a date so significant that the Treasury commissioned commemorative coins on which it would be inscribed — the pressure to agree or reject the prime minister’s deal will all-but disappear. That matters because alternatives that have up until now looked impossible because there was not enough time — such as a general election, a move to force Theresa May out as prime minister or a substantial renegotiation of the Political Declaration based on new red lines — come back into the frame as credible options. Downing Street’s tactic of using the impending Brexit date as leverage with MPs disappears overnight.

“Once an extension is agreed, it is binding in international law,” explained one senior U.K. government official who said this fact was being largely overlooked in parliament. “Once you’ve got unanimous agreement, the date in Article 50 effectively changes from March 29 to whatever is agreed.”

The stance in Brussels is that if an extension to Article 50 is agreed, a new exit day is automatically created.

Brexiteers such as Boris Johnson, the former foreign secretary, are still urging the prime minister to attempt to renegotiate the contentious Irish backstop before bringing it back to parliament.

In Brussels, the position is clear. A so-called “room document” circulated among ambassadors at a meeting on Friday evening — and seen by POLITICO — confirmed that if an extension to Article 50 is agreed, a new exit day is automatically created. “The latter date will then become the cut-off date when the separation automatically happens,” the document states.

This will only change in two circumstances: “[Either] a withdrawal agreement has entered into force or unless the notification of the intention to withdraw has been revoked.”

In Westminster, the U.K. government will be obliged to tweak the EU (Withdrawal) Act to change the exit day, but this can be done by a minister using secondary legislation known as a Statutory Instrument. It remains a source of contention whether the U.K. needs to change its domestic law to delay Brexit at all, because it would continue to be bound by its international commitments regardless.

House of Commons speaker John Bercow | Daniel Leal-Olivas/AFP via Getty Images

Bercow’s intervention, on the face of it, severely restricts the government’s room for maneuver for a third or forth meaningful vote. Bringing the deal back to the House of Commons this week now looks next to impossible. But if the summit does produce a decision to delay Brexit day, ministers could argue that even if the deal itself is unchanged, the proposition MPs are voting on would be subject to a “demonstrable change,” in the phraseology adopted by the speaker.

May is committed to requesting an extension following last week’s votes by MPs against no-deal and for a delay to Britain’s exit. But an extension is not a foregone conclusion. It requires the unanimous approval of EU27 leaders and the message from many senior EU figures has been that while they are open to extension, it must have a purpose.

They might refuse to grant an extension of Article 50 at this week’s summit unless the U.K. prime minister offers a clear reason for the delay — such as a second referendum, general election or reversal of British red lines on the customs union and single market.

However, it remains unclear how the European Council will thrash out an extension. The leaders of the 27 remaining member states will meet without the U.K. PM before dinner on Thursday. If they accept or reject her request, the process is simple. But should they make a counteroffer — either by attaching conditions or offering an extension of a different length — senior U.K. officials are unclear how London will formally accept or approve the proposal.

Theresa May arrives at the European Council for a summit with EU leaders in December 2018 | Ludovic Marin/AFP via Getty Images

The “room document” circulated to ambassadors last week, states that EU leaders would need evidence that the U.K. agrees to any proposal before they could sign it off. The request for an extension itself does not suffice, the document states.

Belgian Foreign Minister Didier Reynders stuck to the EU line on his way into a Foreign Affairs Council meeting in Brussels Monday morning. “We are not against an extension in Belgium, but the problem is to do what?” he said.

“We should be open for a longer extension if there is an argued reason for doing so,” Hans Dahlgren, the Swedish EU affairs minister, told the Local, “But just to have the process going on and on and on without any plan for what the options on the table would be, that’s not very attractive.”

The “room document” makes clear that any extension beyond July 1 would require the U.K. to elect MEPs to the European Parliament in the upcoming election.

One U.K. official said MPs have missed their chance to shape the government’s request for an extension by failing to put forward an amendment last week setting out the terms or length of an extension. “Parliament had its chance to vote on this last week,” said the official. “No one even proposed a date in terms of extension, so it’s up to the government.”

Parliament speaker rules out vote on same Brexit deal

House of Commons Speaker John Bercow on Monday ruled out holding another vote on its Brexit agreement if the motion remains “substantially the same.”

Theresa May’s Brexit deal has been rejected twice by MPs but was due to be voted on again by Wednesday if the government thought there was a good chance of the deal passing.

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Steve Bannon: Theresa May is ‘not terribly sophisticated’

Former White House chief strategist Steve Bannon said Theresa May failed to listen to Donald Trump on Brexit and does not understand “the complexities” of the situation.

Bannon told Sky News that the U.K. prime minister “came over [to Washington], Trump sat there and said ‘Listen, No. 1: Overshoot the target on your deal because it will come apart. No. 2: Get on with it — you ought to be on terms agreed within six months. And No. 3: Use every arrow in your quiver even if you have to do litigation later.'”

“She laughed it off,” Bannon said. “To be brutally frank about it she’s not terribly sophisticated. I don’t think she understood the complexities she was going into.”

Last week, Trump said he gave May “my ideas how to negotiate” Brexit but “she didn’t listen to that and that’s fine, she has to do what she has to do. I think it could have been negotiated in a different manner. I hate to see everything being ripped apart right now.”

Bannon also described former U.K. Foreign Secretary Boris Johnson as “very inspiring” because he’s had his hair cut and lost weight.

“I think Boris Johnson would make a good prime minister. I think Boris Johnson is a guy with big ideas. I think he’s the new recreated Boris Johnson who’s lost 30 pounds — he’s got a new haircut, he’s a role model — the way he’s lost so much weight … very inspiring.”

Read this next: Theresa May turns to Vienna for Brexit help

Brexiteer MPs: ‘Moral’ course is to reject PM’s EU exit deal

British parliamentarians who wish to honor the Brexit referendum outcome must vote against Prime Minister Theresa May’s deal, even if it could lead to a no-deal Brexit, according to almost two dozen hard-line Brexiteer MPs.

In a letter to the Telegraph, they write they will not vote for May’s deal, believing that a no-deal Brexit “will prove to be the precursor to a very good deal indeed.”

Referring to those who say Brexiteers’ choice is now between the “two wretched options” of “Brexit in name only or the indefinite postponement of any Brexit,” the 23 MPs say: “Our moral course is clear: it is not our fault that we are confronted by two unacceptable choices, but it will be our fault if we cast a positive vote in favour of either for fear of the other.”

May is expected to bring her deal back to the House of Commons this week for a third attempt at ratification after two thumping defeats. But Chancellor Philip Hammond and International Trade Secretary Liam Fox said over the weekend that a meaningful vote would only take place if the government is “confident” it could win.

To get her deal through, May will need the backing of her Northern Irish Democratic Unionist Party allies as well as many Brexiteer MPs, most of whom will likely only back the deal if the DUP says it finds the agreement acceptable.

Jim Wells, a senior DUP member in the Northern Ireland Assembly, told the BBC’s Today program: “We still have a huge difficulty with the backstop, because we see it as a waiting room for constitutional change, we can find ourselves locked in there for ever, in effect. And once you get in, you can never get out. We have to have a mechanism where we can escape the backstop.”

He added that there are still “29-30 Conservative MPs who will not be won over by what’s being discussed at the moment, so even with the DUP support, I think it’s inevitable that Theresa May, if she pushes the third vote, will go to yet another defeat.”

Former Foreign Secretary Boris Johnson also made clear this morning he will not be persuaded to back the Withdrawal Agreement in its current form. In his weekly column in the Telegraph, he said the Irish backstop “gives the EU an indefinite means of blackmail.” He said the only way forward is to “get real change to the backstop” at the European Council summit on March 21-22.

“It would be absurd to hold [a third] vote before that has even been attempted.”

It’s not all doom and gloom though: Over the weekend, No. 10 managed to bring round former Work and Pensions Secretary Esther McVey and a few other Tory MPs.

Jacob Rees-Mogg, a leading Brexiteer and chair of the Conservatives’ European Research Group, signaled on his LBC radio phone-in interview this morning that he would watch the DUP closely ahead of any third vote on May’s deal, and indicated he could eventually support it.

“No deal is better than a bad deal, but a bad deal is better than remaining in the European Union,” he said.

Theresa May turns to Vienna for Brexit help

LONDON — There’s a new Brexit deal in the works: Britain will close its eyes if Europe bites its tongue.

In a bid to get Theresa May’s deal over the line — and stop a Brexit delay of 21 months or longer — the U.K. government has turned to an obscure clause in an obscure international treaty to prove to hard-line Euroskeptics that there is a way out of the Irish backstop.

With May’s Brexit deal likely to be voted on in the House of Commons this week for a third time, ahead of the prime minister traveling to Brussels on Thursday to seek an extension of Article 50 irrespective of whether or not her deal passes, London is looking for creative — some say dubious — ways to bring opponents on board.

That’s where Article 62 of the Vienna Convention — a treaty that lays down the rules about international treaties, or legal agreements between countries — comes in.

Under one option set out by the Brexit Secretary Steve Barclay, the U.K. could make a statement saying that if there are “unforeseen circumstances” arising from the implementation of the backstop, the U.K. would have the right to walk away.

British Prime Minister Theresa May | Niklas Halle’n/AFP via Getty Images

Barclay confirmed the U.K. is looking at this scenario in a parliamentary answer to Conservative MP Jacob Rees-Mogg last week.

Barclay spelled out one possible “unforeseen” circumstance in his answer to Rees-Mogg. He said if the U.K. deemed that the backstop was “no longer protecting the 1998 [Good Friday] agreement in all its dimensions,” that could be enough for the U.K. to pull out of it.

In other words, if the backstop, which is there to protect the open border in Ireland — a central part of the peace process — is later seen to be actively undermining the peace process, the U.K. could seek to declare the arrangement null and void.

The problem for the U.K. government, according to EU officials aware of the proposal, is that “unforeseen circumstances” are hardly that if they are known about in advance.

One international law expert, who did not want to be named, said the Vienna Convention argument is “weak.”

One senior government official from an EU27 member country said the EU would “not be surprised to see a truly unilateral declaration of this or another sort tried out” over the coming days. “The question for us would be how far to bite our tongues,” the official said.

If the EU does bite its collective tongue, the U.K. government hopes Brexiteers will close their eyes to what many experts and EU officials believe is the dubious legal basis of the Vienna Convention option in a bid to get the deal done.

If the EU and the Brexiteers both play their part, the argument goes, the Brexit deal might still have a chance of passing.

Changes in the small print

The Withdrawal Agreement drawn up by the U.K. and EU states that the backstop is necessary to protect key elements of the Good Friday peace agreement.

One section of the backstop text acknowledges that it is needed “so as to maintain the necessary conditions for continued North-South cooperation … in accordance with the 1998 Agreement.”

However, in the joint “instrument” subsequently agreed by both sides — which provides interpretation of the Withdrawal Agreement — the relationship between the backstop and the Good Friday Agreement appears to have changed.

Instead of being “necessary,” the joint instrument says the new structure of governance for Northern Ireland contained in the backstop “does not affect or supersede the provisions of the 1998 Agreement in any way.”

It adds that the backstop does not alter “in any way” those areas where Belfast and Dublin agreed to work together under the terms of the Good Friday Agreement. These areas will continue to be “matters for the Northern Ireland Executive and Government of Ireland to determine,” the joint instrument states.

Attorney General Geoffrey Cox said the “legal risk” that the U.K. would have no way of unilaterally leaving the backstop remains “unchanged” after Theresa May’s latest round of negotiations with the EU | Tolga Akmen/AFP via Getty Images

Unionists briefed on the matter say this section is key because it suggests the U.K. government is concerned the backstop, far from being “necessary” to protect the Good Friday Agreement, may, over time, serve to undermine some of its core provisions. Nationalists in Northern Ireland — and EU officials — fiercely dispute this.

Nevertheless, by inserting the clause into the joint instrument, the U.K. has set up an extra test for the backstop that ministers believe could justify withdrawal should the backstop ever risk becoming permanent.

Addressing Rees-Mogg on Tuesday, the Brexit secretary said the issue is whether there might be “exceptional circumstances that might change the basis on which the U.K. might enter into an agreement.”

He explained: “If the United Kingdom took the reasonable view, on clear evidence, that the objectives of the protocol [backstop] were no longer being proportionately served by its provisions — because, for example, it was no longer protecting the 1998 agreement in all its dimensions — the U.K. would first, obviously, attempt to resolve the issue in the Joint Committee [to be set up as part of Withdrawal Agreement] and within the negotiations.

Brexit Secretary Stephen Barclay attending a Cabinet meeting in February | Leon Neal via Getty Images

“However … it could respectfully be argued, if the facts clearly warranted it, that there had been an unforeseen and fundamental change of circumstances affecting the essential basis of the treaty on which the United Kingdom’s consent had been given.”

In this instance, Barclay said, “Article 62 of the Vienna Convention on the law of treaties … permits the termination of a treaty in such circumstances.”

He added: “It would, in the government’s view, be clear in those exceptional circumstances that international law provides the United Kingdom with a right to terminate the Withdrawal Agreement.”

A senior official from an EU27 member state dismissed the basis of the argument, saying it is perfectly possible to foresee that it would not be possible to find an agreed solution to the Irish border.

The official added that the regulation of trade between Northern Ireland and the Republic of Ireland “is not and never has been a competence of the GFA [Good Friday Agreement] institutions.”

This article is part of POLITICO’s premium Brexit service for professionals: Brexit Pro. To test our our expert policy coverage of the implications and next steps per industry, email [email protected] for a complimentary trial.

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May asks MPs for ‘honourable compromises’ to back Brexit deal

Prime Minister Theresa May today asked Britain’s MPs to “stand together as democrats and patriots” to back her Brexit deal.

Writing in the Telegraph, May lent heavily on the prospect that delays to Brexit could force Britain to vote in May’s European Parliament election as a reason why the House of Commons must support her deal.

After parliament last week rejected leaving the EU without a deal and declined to support a second public vote on Brexit, May is undertaking a last-ditch push to convince MPs to back her Brexit deal at the third time of asking, in a vote this week.

She said her deal “is the only way through the current impasse.”

“If Parliament can find a way to back the Brexit deal before European Council [which meets Thursday], the UK will leave the EU this spring, without having to take part in the European elections, and we can get on with building our future relationship with the EU,” she wrote. “If it cannot, we will not leave the EU for many months, if ever.”

If the U.K. parliament backs her deal this week May said she would seek “a short technical extension to pass the necessary legislation.”

“The alternative if Parliament cannot agree the deal by that time is much worse,” she wrote. Failure to vote through her deal would likely “mean a much longer extension” to Brexit beyond March 29, May said, “almost certainly requiring the United Kingdom to participate in the European Parliament elections in May.”

“The idea of the British people going to the polls to elect MEPs three years after voting to leave the EU hardly bears thinking about. There could be no more potent symbol of Parliament’s collective political failure,” May said.

The prime minister acknowledged she still lacks the support she needs from her own Conservative Party, as well as from Northern Ireland’s Democratic Unionist Party, to get her deal through parliament.

She asked MPs to make “the honourable compromises necessary to heal division and move forward.”

Esther McVey, who previously quit May’s Cabinet to vote against the prime minister’s deal, told Sky News on Sunday that she and other Brexiteer would now “be forced, holding our nose,” to vote it through.

“The rules have all changed,” she said. “I still believe Theresa May’s deal is a bad deal, but after the votes in the house last week … the choice before us is this deal or no Brexit whatsoever.” However, she added support from other groups such as Labour would be required.

Labour leader Jeremy Corbyn told Sky News on Sunday that his party would not support May’s deal, noting it had been rejected twice by parliament.

“This is ridiculous. This thing has been defeated comprehensively. And she has got to recognize that we’ve got to do something different,” he said.

National ambassadors were told Friday that Brexit can’t be delayed beyond July 1 unless Britain takes part in the European election, according to a document prepared by EU officials and seen by POLITICO.

Writing in the Telegraph, May said that, if her deal cannot get support, that could require negotiators to “go back to square one and negotiate a new deal.”

The Observer reported that EU officials are considering how to limit the options for any changes in Britain’s political leadership to reopen Brexit talks, amid concerns there is little hope of May getting her deal through parliament.

It quoted European Commission Secretary-General Martin Selmayr as telling a Friday meeting: “It must be clear that the starting point is not a renegotiation of the withdrawal agreement.”

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Document: Brexit by July 1 unless UK votes in EU election

Brexit can’t be delayed beyond July 1 unless Britain takes part in the European Parliament election at the end of May, according to an EU document presented to ambassadors of member countries on Friday.

The document, prepared by EU officials, sets out the legal issues that would be raised by Britain requesting an extension of the Article 50 period, as Prime Minister Theresa May is expected to do next week.

The text states that a withdrawing member country is legally bound to organize European Parliament elections between May 23 and May 26 this year. If the member country does not do so and the new Parliament holds its first session on July 2 with that country still in the bloc, the EU institutions “cease being able to operate in a secure legal context.”

“It follows that no extension should be granted beyond 1 July unless the European Parliament elections are held at the mandatory date,” the document says.

The document says that multiple extensions to the Article 50 period are theoretically possible. But if the U.K. were granted an extension until July 1 and did not take part in the European Parliament election, it could not then be given a further extension.

“It follows that if an initial extension puts the withdrawal date after the date of the European Parliament elections, and if these elections were not organised by the withdrawing State, this would make any further extension impossible,” the document says.

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