Brexit: time to move on

12/03/2019

Mrs May told us that she would bring us a legally binding document on the Irish backstop. And that's what she's done, travelling all the way to Strasbourg to get it. Anyway, the famous cathedral city is somewhat better than a storeroom in Grimsby, even if Jean-Claude Juncker was there.

It's just as well she's coming back with a document and not a tee-shirt, as it would be quite difficult fitting the title on the front, no less than an: "Instrument relating to the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community".

This, however, only sounds grand because the names are spelled out in full. In short-form, the document title reads: "an Instrument relating to the agreement on the withdrawal of the UK from the EU", which isn't half as impressive. As a title, it's also meaningless. But then, so is the document.

The thing is, this doesn't matter at all. "Never mind the quality - feel the width", the saying goes. The MP collective wanted a legally binding document and it got one. And we know it's legally binding because it says so, right there on the very first page. It says:

… this instrument provides, in the sense of Article 31 of the Vienna Convention on the Law of Treaties, a clear and unambiguous statement by both parties to the Withdrawal Agreement of what they agreed in a number of provisions of the Withdrawal Agreement, including the Protocol on Ireland/ Northern Ireland. Therefore, it constitutes a document of reference that will have to be made use of if any issue arises in the implementation of the Withdrawal Agreement. To this effect, it has legal force and a binding character.

So there you go. Those MPs who want to go into the debate today and argue that Mrs May has delivered on her promise can do so. It could not be clearer. This is a document of "legal force" with a "binding character" and it relates to the Withdrawal Agreement. What more could anybody want?

The big question, some might then feel, is whether this is enough to swing MPs behind the Withdrawal Agreement, and ratify it with their votes today. But that's the wrong question. What we need to ask is whether there will be enough MPs in the House when the division is called who are prepared to delude themselves that this meaningless document is in fact meaningful.

Considering that so many MPs so easily delude themselves on so many things – to the extent that most MPs are delusional about something or other most of the time – this shouldn't be too much of a problem. It's a matter of willpower – not the "will of the people", but the will of the collective. A sprinkling of unicorn dust and the delusional can become sane.

To help the collective on its way, the prime minister has helpfully produced a press statement. Pointedly, she refers to the "improved Brexit deal" and having "secured legal changes", with a joint instrument of "comparable legal weight" to the Withdrawal Agreement.

This, says Mrs May, "will guarantee that the EU cannot act with the intent of applying the backstop indefinitely". If the nasty EU hatches up a dastardly plot to trap the poor, feeble UK in the backstop, then an ingenious solution kicks in. Under the dispute settlement mechanism, already agreed, a ruling by the arbitration panel that one of the parties is acting with the objective of applying the Protocol indefinitely would be binding on the Union and the United Kingdom.

Then, persistent failure by a party to comply with a ruling, and thus persistent failure by that party to return to compliance with its obligations under the Withdrawal Agreement, may result in temporary remedies.

Ultimately, the aggrieved party would have the right to enact a "unilateral, proportionate suspension" of its obligations under the Withdrawal Agreement (other than Part Two), including the Protocol. Such a suspension may remain in place unless and until the offending party has taken the necessary measures to comply with the ruling of the arbitration panel.

It doesn't take much to spot a few snags in this arrangement, but then it's how it plays to the collective that matters. Mrs May has already got her narrative lined up. The EU can't deliberately trap us in the backstop, so there!

And there is more to this. By way of a "legal commitment", the UK and the EU will begin work immediately to replace the backstop with alternative arrangements by the end of December 2020. And, to that effect, there will be a "specific negotiating track" on alternative arrangements from the very start of the next phase of negotiations, a wondrous thing that will consider "facilitations and technologies" – both those currently ready and emerging.

And yet, there is even more. The United Kingdom Government will make a Unilateral Declaration. This is not your common and garden declaration, because it has a capital "U" and a capital "D". It says that if the backstop actually comes into effect, and discussions on our future relationship with the EU break down to such an extent 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".

That, of course, would mean that a hard border would immediately apply between the Republic and Northern Ireland, as it would apply if there was no deal. But Mrs May doesn't mention that. We have a new, "washes whiter" improved deal, that banishes all stains from our relationship with the EU.

And today, the prime minister will speak in more detail about these wondrous things when she opens the debate in the Commons. But already, she is convinced that now is the time for the MP collective to come together, to back her new deal and "to deliver on the instruction of the British people".

Just to make sure that the MPs are listening, Mrs May is saying that this is the last time they will be asked to vote. There will be no further negotiations, so they should not expect another "washes even whiter" deal to come rolling along to replace this one. This is it – this is the one.

The same message is being delivered by Juncker, who has roundly declared that there will be "no third chance". It is this deal or Brexit might not happen at all, he says.

Whatever else, I suppose the prime minister must be given ten out of ten for trying. Although she stopped short of holding a press conference at the foot of the steps as she disembarked from her RAF transport, and thus resisted the temptation to wave a piece of paper declaring "peace in our time", she has done just about everything else possible short of actually negotiating a new deal.

As it stands, the existing Withdrawal Agreement stays in place, its text unchanged, and the backstop is still there, lurking in the background ready to kick in the moment the transitional period is over.

And if she or the MPs think there is anything to be gained from kicking the can further down the road, there is a sharp reminder in a letter from Juncker to Donald Tusk, that if the UK has not left the EU by 23-26 May, it will be legally obliged to hold elections for the European Parliament.

The framing is such that the very clear intent of the "colleagues" is to draw a line under the withdrawal process. It is "time to move on" writes Juncker, "as swiftly as possible".

Most of the nation would echo those sentiments, but it remains to be seen whether the MPs can rise to the occasion. They have the attention of the media at the moment, and are luxuriating in the limelight. Rarely have they had so much airtime, and they are bound to want to make the most of today's drama.

But, if at the end of the day, we don't have the Withdrawal Agreement in the bag, then it is hard to see whether there can be any alternative to a no-deal Brexit. The MPs may keep on playing their games, but with 17 days to go, they are about to learn the meaning of the word "default".

Not unreasonably, a number of prominent figures are saying that if the vote goes the wrong way today, the country will be plunged into crisis. Even if the agreement is ratified, though, it may only be crisis deferred, but as long as there is progress there is hope.

And that is what is at stake today. And it is not just Mrs May under scrutiny. More so than in living memory, parliament is in the firing line. And if demands are high, expectations are low. But if the MPs fail to step up to the plate, there will be a price to pay.