Moving target May might well look to Danes’ Maastricht manoeuvre

Donald Tusk was becoming exasperated. The EU leaders' foreign policy discussion was running over time. Their chairman warned them to little avail that dinner awaited. "The main dish is getting cold . . ." he chided.

“I’m not the main dish,” Theresa May is reported by one PM to have muttered.

Nor, in fact, was she going to the dinner. That was when the summit reassembled in what is known as "article 50 format" – with 27 participants – to discuss Brexit over their cold main course and an à la carte selection of dishes from the British PM. More than one of them, it is reported, jarringly at odds with other options. And none appetising.

She had lobbied hard at meetings in the run-up – flights to Berlin, The Hague and Brussels, others by phone, Leo in person on the way in for nearly two hours.

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But when the rebuff came from the 27 at a midnight press conference it was blunt, unequivocal and clearly unanimous. Not only did the many ways she had suggested of explaining/clarifying “unless and until” to mean the UK could not be “imprisoned” forever in the backstop fail to tempt them, but May was given the most elementary lesson in negotiating.

Go away, they said, and come back when you can guarantee parliamentary support for proposals you will put to them. We can’t negotiate with a moving target, an endless succession of new demands.

Copenhagen experience

May is not the first EU leader to confront the challenge of wrestling an unamendable EU treaty unacceptable to her people into a form which she and the rest of the EU can sign off on.

There were, of course, two Irish referendums which led to successful ratifications after assurances to Irish voters in the form of protocols – “Nice” in 2001-2002, and “Lisbon” in 2008-2009.

But perhaps most pertinent to May’s rebuff from EU leaders was the Danish experience with the Maastricht Treaty, defeated in June 1992 by 50.7 per cent of voters (on a turnout of 83.1 per cent).

Danish voters, rather like the UK's Brexiteers in many respects, did not like plans for a single currency; for a European defence policy; for citizenship of the new European Union; and for joint policy on immigration and crime. They feared Maastricht was creating a European superstate, with little democracy, and no room for the small countries. And for Denmark's high standards of welfare.

The rejection of the treaty meant a major crisis for the EU. The integration process could be and was stalled by one state.

While some contemplated doing nothing, or a new treaty leaving Denmark out, others wondered if the Danes could be persuaded to try again. Key to that would be ensuring that at least one opponent of the treaty could be prevailed on to vote Yes. The No-voting, left-wing Socialist People's Party (SPP), which despised the Conservative/Liberal government, would be key.

So two opposition Yes parties, the Social Democrats and the Social Liberals, took the initiative. Working with the SPP, without government involvement, they crafted a “national consensus” package of four treaty protocols for Denmark – on the euro, common defence, justice and home affairs, and EU citizenship.

Clear protocols

The protocols would make clear what was already a legal reality, that Danish involvement in any of the above would require a specific referendum, but, crucially, did not require any substantive change to the treaty.

The three then sold the package to the government, which went to Brussels, where delighted fellow member states were told “this is how you do it” – protocols with opt-outs, and no one touches the treaty. And, importantly, they were told “it will be approved”.

In May 1993, Maastricht was approved by Danish voters 56.7 per cent (on an 86.5 per cent turnout). An evenly divided country changed its mind, had second thoughts, voted again. The foundations of Danish democracy were intact, while few talked of a “thwarted” will of the people. And the “national consensus”, crafted by the opposition, gave just enough to placate both sides.

Of course, were May to take the Danish experience on board it would mean doing something completely anathema to British politics. It would mean saying to Labour and Jeremy Corbyn "all right then, you do it. You come up with a formula."

Any chance?