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Dominic Walsh is a policy analyst for Open Europe.

During the last few days, followers of the Brexit saga have largely focused on momentous developments in Westminster. Labour’s belated and qualified support for a second referendum has hogged the headlines, while the Prime Minister’s decision to offer the Commons votes on No Deal and Article 50 extension on March 13 and 14 feels like a game-changer. Meanwhile, the Independent Group have had a good inaugural week, with one YouGov poll placing them on an eye-catching 18 per cent.

However, the EU side of the story still matters. Before the second meaningful vote on 12 March, the UK and EU will need to agree on legal guarantees which the Prime Minister and Attorney General are seeking on the backstop. There was no ‘deal in the desert’ at the weekend, and little sign of an imminent breakthrough. But after this week’s votes are over, attention will once more focus on what the EU can give the Prime Minister on the backstop.

The EU’s inflexibility – in part a product of the need to maintain internal unity – has become notorious in the Brexit negotiations. Just a few weeks ago, Martin Selmyar said that “on the EU side, nobody is considering” extra legal assurances on the backstop.

Yet history shows that the EU can be far more flexible than many give it credit, when flexibility is needed to salvage the ratification of an important treaty. In a new briefing, Open Europe explores four examples when the EU, confronted with domestic obstacles to ratification, has revisited deals it had already signed off.

These occurred in 1992, after Danish voters blocked the ratification the Maastricht Treaty; in 2008, when Irish voters opposed the ratification of the Lisbon Treaty; in April 2016, when Dutch voters rejected the EU-Ukraine association agreement; and in October 2016, when Wallonian MPs voted against ratifying the EU-Canada deal.

On each occasion, the EU did not want to reopen the treaty itself, yet needed to remove barriers to domestic ratification. And on each occasion, they came up with a creative compromise which clarified and interpreted the treaty without fundamentally altering it – often by closing off undesirable interpretations or possible outcomes which the treaty alone left open. Whether it is called a ‘protocol,’ a ‘codicil’ or a ‘joint interpretative instrument,’ the key take-home is that each of these solutions made a material political difference and had genuine legal force.

It is often argued that while the EU is prepared to make concessions for existing member states, it will not – or should not – make such a concession for the UK. But this is a political argument, not a substantive point. It is not simply a question of doing the UK a favour when the impact of a No Deal departure affects EU member states too – and Ireland most of all. And arguably, the stakes for the EU are higher now than they were over Lisbon, CETA, or Maastricht; on those occasions, ‘No Deal’ meant a continuation of the status quo.

It is true that three of these examples involved ratification via referendum, while the UK is seeking to ratify the Withdrawal Agreement via Parliament. But that is neither here nor there. Whether it was voters or MPs, in each case genuine concerns about the treaty in question were expressed in a democratically legitimate way. And in each case, these concerns were addressed by the EU without reopening the offending treaty. Something similar is needed now.

At this stage in the negotiations, it is both unnecessary and unrealistic for Brexiteers to fetishise reopening the Withdrawal Agreement. After all, the problem with the backstop is one of interpretation as much as substance – in particular the concern that it could end up being a trap from which the UK could not escape.

This fear can be addressed via a protocol, which would be legally binding, ratified by the Commons and the European Parliament as a ‘mini-treaty,’ and annexed to the Withdrawal Agreement. The main objective should be to give the existing aspiration that the backstop “does not aim” to be permanent some legal teeth, by emphasising that under EU law, Article 50 cannot be the basis of a permanent future relationship. As well as allowing the Attorney General to modify his legal advice, this could give the UK a valuable tool in the next phase of the negotiations if Brexiteer fears of a ‘trap’ were ever realised.

Ultimately, the EU may say the deal is locked down. But these historical examples show that it isn’t over until it’s over. The EU has shown flexibility before; it needs to do so again now.

28 comments for: Dominic Walsh: The EU and the backstop. This “rules-based organisation” has shown flexibility before. As it can and should now.

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