Brexit: EU’s ‘final offer’ to UK emerges after last-minute scramble

Good morning.

After a last-minute scramble, what is being described as the EU’s final offer to the UK emerged after a meeting between Jean-Claude Juncker and Theresa May in Strasbourg last night.

In Dublin, Ministers were briefed on its contents at a hastily arranged late-night Cabinet meeting, which finished around 11.30pm.

Outlining the deal at a press conference, Juncker said: "Let us be crystal clear about the choice: it is this deal or Brexit might not happen at all."

Full text of Brexit joint EU-UK statement: ‘The future relationship’

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For her part, May said she stood by the withdrawal agreement struck last November but said the new documents published last night made it clear the backstop - which keeps the UK in a customs union with the EU, with add-ons in customs and regulations for Northern Ireland, if there is no future deal to keep the Irish Border open - did not form the basis of a future, post-Brexit relationship.

May insisted, however, the UK had secured “legal changes” to the backstop, with Dublin insisting London had only been offered legal assurances on what had already been agreed. Both the EU and UK agreed a joint interpretive statement on the backstop, with the UK publishing its own unilateral declaration it claims offers a way out of the clause, which has proved to be the main stumbling block to Westminster giving its assent to a Brexit deal.

Dublin and Brussels are biting their tongues on this point and say there is no unilateral exit clause to the backstop nor a time limit on its provisions. Dublin will stick to its line that the new moves are “legally binding assurances” that leave the withdrawal agreement and the joint political declaration, the looser document that sketches out the future EU-UK relationship, unchanged.

Government Buildings says it was across developments yesterday, with Taoiseach Leo Varadkar in touch with Juncker’s team, despite the last-minute dash back from Dublin Airport by some of the Taoiseach’s senior staff who were on their way to DC for the St Patrick’s Day programme.

A number of Ministers - Paschal Donohoe, Richard Bruton, Heather Humphreys and Finian McGrath - were already abroad, although it is understood most dialled in for the Cabinet meeting. Varadkar adjourned the meeting to take a call from Juncker, with the contents of the unilateral British declaration said not to be concluded at that point.

At last night’s press conference, Juncker said: “The Taoiseach will be prepared to back this approach.”

Much of today will be spent arguing over the finer details of this passage in the joint statement: “Under the dispute settlement mechanism, a ruling by the arbitration panel that a party acts with the objective of applying the Protocol indefinitely would be binding on the Union and the United Kingdom. Persistent failure by a party to comply with a ruling, and thus persistent failure by that party to return to compliance with its obligations under the Withdrawal Agreement, may result in temporary remedies. Ultimately, the aggrieved party would have the right to enact a unilateral, proportionate suspension of its obligations under the Withdrawal Agreement (other than Part Two), including the Protocol. Such a suspension may remain in place unless and until the offending party has taken the necessary measures to comply with the ruling of the arbitration panel.”

None of this changes the substance of the withdrawal agreement.

The UK unilateral declaration - which says: “the United Kingdom 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 Protocol” - on the face of it argues the UK can begin a process that leads to the backstop not being applied.

However, the joint interpretative instrument outlines how the process to release one party from the backstop can happen - but only temporarily, it seems.

Firstly, an arbitration panel has to rule that one of the parties is trying to use the backstop as a permanent measure. The offending party then has the chance to comply with this ruling. If it doesn’t, the other party - say, the UK - can unilaterally suspend the backstop. Yet this suspension remains in place “unless and until” - that phrase again - the offending party moves to comply with the arbitration panel. And, even then, does a temporary suspension mean an exit? Could the UK for example, strike its own trade deal with the US in a suspension period?

As of now, it seems doubtful, but these arguments are likely to be played out in the House of Commons today, ahead of the crucial meaningful vote this evening. In an analysis piece, Denis Staunton says the package gives May a fighting chance of securing the approval of MPs. One thing is for sure - all of the above wouldn't fit on a slogan on the side of a red bus.

All eyes will be on Geoffrey Cox, the UK attorney general, to see if he revises his previous position that Britain can be trapped in the backstop permanently.

Our lead is here with a piece on the comings and goings here.

Follow irishtimes.com today for all the latest developments.

Playbook

Taoiseach Leo Varadkar is expected to depart for his St Patrick’s Day programme of events in Washington DC.

Dáil

Leaders’ Questions is at 2pm, followed by the Order of Business.

Minister for Justice Charlie Flanagan is on oral questions.

The Civil Law (Presumption of Death) Bill 2018 is at second stage.

The Credit Union Restructuring Board (Dissolution) Bill 2019 is at second stage.

The Rural Independent Group has a motion on the national children’s hospital.