So, this morning May came back from her last-minute trip to Strasbourg with what she described as ‘legally binding changes to the backstop’, which is apparently ‘exactly what MPs asked for’. It’s been all over the news, and May is obviously trying to sell it as a game-changer, but what exactly are these changes?
Well, there are basically three things. The first one is what’s called a ‘joint interpretative instrument’, which is the legally binding bit May was talking about. It’s a sort of legal ad-on on the withdrawal agreement, which effectively gives legal weight to commitments made by Barnier in his January letter to May. The document is only 5 pages, and you can find it online. If you read it, you’ll notice that it doesn’t actually say anything that substantial. The exact wording of the relevant bit is:
‘…the parties do not wish the backstop solution in the Protocol on Ireland/Northern Ireland to become applicable, that were it to do so it would represent a suboptimal trading arrangement for both sides, and that both parties are therefore determined to replace the backstop solution…’
This doesn’t mean that the backstop is time limited, or that there’s some unilateral exit mechanism. It just says that neither the UK nor the EU want the backstop, although it might happen. The government has argued that this makes it ‘less likely’ that the UK will get stuck in the backstop, and while Attorney General Geoffrey Cox has said it ‘reduce[s] the risk’ of the UK getting indefinitely stuck in the backstop, he has also noted that ‘legal risk remains unchanged’. This is really bad news for May, as it means that the instrument is unlikely to change many (if any) MPs’ minds.
As well as this legal instrument, there has also been a unilateral statement from the UK, and some additional language in the political declaration accompanying the withdrawal agreement. The unilateral statement from the UK says that, if the backstop were to become permanent, the UK believes it could exit the arrangement. The additional language in the political declaration makes further reference to ‘technological solutions’, and re-emphasises how keen both sides are to avoid a permanent backstop. However, neither of these changes are legally binding, and so are unlikely to affect which way MPs vote.
The changes may has made may convince some MPs, however, when it comes to the vote her deal isn’t likely to pass. The Chair of the European Research Group (ERG) has said that the changes to the deal still don’t offer enough “protection for Northern Ireland as part of the United Kingdom”. As such it’s very likely that ERG members will vote against May’s deal.
She may have reduced the margin of defeat, but the changes aren’t comprehensive or concrete enough to actually change the minds of the most important groups.