May's Brexit Deal Lets Parliament Pick Its Poison

(Bloomberg Opinion) -- Say at least this for Theresa May: She has thrown absolutely everything at the effort to make her European Union divorce deal palatable to Britain's parliament. On Monday night that included a dramatic last-ditch trip to Strasbourg to sign off on the latest – and, according to European Commission President Jean-Claude Juncker, the last – changes to the Brexit agreement.

It’s too early to say whether the gambit has worked. Parliament rejected her deal by 230 votes in January and will get another chance to approve it on Tuesday night. But May has also promised them two further votes this week if they turn it down again: One on whether Britain should leave with no deal at all and another on whether it should seek a delay to the March 29 exit day.

The texts of the new assurances were released late in the evening. Attorney General Geoffrey Cox's legal opinion, a big influencer in this process, will be published only on Tuesday. There was instant criticism from the usual suspects even before the texts had been digested, but there were also suspended judgments.

Lawmakers will be most focused on the joint instrument relating to the Withdrawal Agreement (the main divorce deal), which both Juncker and May say is legally binding and equal to the main text of the divorce deal. This is where May hopes that she'll have provided enough assurances that the U.K. cannot be trapped in the so-called Irish backstop, the provision that keeps the U.K. in the EU's customs union if other arrangements aren't found to keep the Irish border open.

Both sides agree “that it would be inconsistent with their obligations” under the Withdrawal Agreement for either party to seek to apply the backstop indefinitely. They have designated a dispute settlement mechanism for redress. If this manages to steer clear of involvement from the European Court of Justice, a bogeyman for Brexiters and the final arbiter of EU law, then May might score some points there.

There is also a curious unilateral statement in which the U.K. government “records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations” under the Irish protocol. In other words, the U.K. considers itself able to walk away from the backstop even if the EU doesn’t see it that way. That may not have any legal force, but then again the EU isn’t objecting to it (yet) and it will be filed with all the other parts of the agreement, which would make it hard to ignore if push came to shove.

We can leave the legal interpretations to the international lawyers. It will not take them long, I suspect, to find fault with a deal that sought to do the impossible: Give the EU, and especially Ireland, the insurance it required on preserving an open Irish border no matter what happens with EU-U.K. trade talks, while also promising the U.K. that it wouldn’t be tied into an arrangement to keep the border open if those talks break down. The fact that the actual Withdrawal Agreement has not changed will dismay (but not surprise) hardline Brexiters who had insisted it be altered.

And yet the decision facing lawmakers Tuesday night is primarily political. Proponents of a no-deal Brexit will find enough to convince them the new concessions are too flimsy. For those looking to avoid either the chaos of a no-deal Brexit, or the uncertainty of a delay that might lead to no Brexit, the changes may just be enough to secure a vote.

Much depends on which way the Democratic Unionist Party, the small Northern Irish party that gives May her majority, goes. If the DUP rules that the changes do not satisfy their concerns that Northern Ireland could be left cut off from the rest of the country, then Brexiters in May’s own party are likely to abandon the cause too. A DUP thumbs-up might just pull in enough Conservative votes that May can make up a majority with some Labour support.

And if not? It’s hard to take much comfort in the alternative routes if May’s deal is rejected. If there is a majority in the House of Commons for anything, it has been opposition to crashing out of the EU with no deal, so that vote can be expected to be defeated on Wednesday. And yet it’s not automatic that a no-deal exit can be avoided as opposed to just delayed.

Some lawmakers will welcome a vote on delaying the exit date. But an extension to Article 50’s two-year deadline for negotiations requires the unanimous approval of EU members and there is likely to be a quid pro quo. What is the purpose of the extension and for how long, they will want to know. The EU isn’t about to authorize a “rolling cliff edge,” as Irish Taoiseach Leo Varadkar put it.

Given the European Parliament elections in May, the EU will be reluctant to grant an extension of more than a few months. That isn’t enough time to prepare for a second referendum, but it might give adequate breathing space to hold a snap general election, or form a cross-party committee to hammer out a majority for a softer Brexit. None of those options will please hardline Brexiters.

Meanwhile, business investment and consumption keep falling. A deal would no doubt bring a reprieve, even if it also brings some economic loss and the long, hard slog of new trade negotiations. The question is whether lawmakers are willing to acknowledge what most Britons have already figured out: That Brexit is a game with different categories of losers, but no winners. Parliament must now pick its poison.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Therese Raphael writes editorials on European politics and economics for Bloomberg Opinion. She was editorial page editor of the Wall Street Journal Europe.

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