There seems to be a misunderstanding in parts of the EU about how the British constitution works. The claim is that the Government is now seeking to alter a deal which it has agreed. This is correct as far as it goes.
But governments are not entitled simply to agree such deals without Parliamentary approval. That is why the Lisbon Treaty, for example, was subject to a Bill, back in Gordon Brown’s time as Prime Minister. And why this Government, similarly, will need an EU Withdrawal Bill to pass Parliament in the event of a deal being approved by the Commons in principle.
The EU ought to see the point at once – because it has very similar arrangements. So it came about that Wallonia was able to hold up the EU’s trade deal with Canada. Jean Claude Juncker and Michel Barnier are not automatically entitled to agree anything they like without the endorsement of member states.
A more subtle argument from the EU side is that it was wrong for Theresa May to whip Conservative MPs against her own deal. Perhaps – but in that case, the EU has to drop the argument that “Britain must sort this mess out”, and “we don’t know what Britain wants”.
Whatever you think of her leadership of the British side of the negotiation, the Prime Minister was indeed trying to sort this mess out. The deal was rejected by MPs only a fortnight ago – enduring the biggest Government defeat and Tory backbench revolt in modern history. By whipping for the Brady amendment, she helped to enable the Commons to vote for something, even if the EU doesn’t like it.
Furthermore, it is no longer the case that the EU doesn’t know what Britain wants – or at least what the Commons wants. It wants an end to the backstop. That is almost certainly not negotiable. But a time limit or a unilateral right to withdraw just might be. And even if neither is, the point remains: the EU now knows what the Commons wants.
This site believes that an extension to Article 50 is now likely. But it doesn’t follow that if there is an extension there will necessarily be revocation. For when extension ends, No Deal will still be “on the table”, unless the legislation enabling Brexit has been revoked.
So the EU side of the table faces its own “cliff edge”. We are told that the backstop is essential to avoid a harder border in Northern Ireland. But if it falls, there will be exactly such a harder border – because the EU will ultimately not allow an unregulated flow of goods from the UK across a land border into its internal market. They know it, we know it, and Leo Varadkar knows it.
So all concerned need a way out. Fortunately, the text of the deal itself points to one. It says that the backstop will apply “unless and until an alternative arrangement implementing another scenario is found”. The EU is absolutely within its rights to misread the way the British constitution works, and to insist on keeping the backstop. But if it wants a way out of the impasse, it knows what to do.