Theresa May abstained on Tuesday in votes on amendments to a Northern Ireland Bill that would extend same-sex marriage and abortion rights to the North. But the prime minister is privately in favour of the changes and would like to see the legislation pass before she leaves office the week after next.
The Bill's committee stage will be debated in the Lords next Monday and could complete all its stages next week. But allies of Boris Johnson want to slow it down, not because of marriage equality or abortion but because of amendments tabled by former Conservative attorney general Dominic Grieve.
Grieve tabled four amendments, the first of which (amendment 14) would have required the government to report to the House of Commons on progress in powersharing talks on September 4th. That was not selected by the speaker this week but another of Grieve’s amendments requiring fortnightly reports until the Stormont institutions are restored was passed by a single vote.
Brexiteers fear that the Lords will reintroduce amendment 14, which aims to prevent Johnson from suspending parliament in September or October in order to force through a no-deal Brexit on October 31st. Grieve owes his success on Tuesday to the fact that a government whip who was paired with a Labour MP cast her pair's vote but forgot to cast her own.
But if he fails next week, Grieve knows that his chances of success will improve if Johnson, as expected, becomes prime minister on July 24th and the pool of anti-Brexit rebels is restocked with a number of current cabinet ministers.
Johnson has promised to “disaggregate” the withdrawal agreement, extracting elements such as EU citizens’ rights which Westminster would guarantee unilaterally. The £39 billion divorce bill would be suspended in “creative ambiguity” above the talks and future arrangements for the Border would be negotiated as part of a broader trade deal after Britain leaves the EU.
There is ample scope for creative ambiguity around all three commitments, starting with the promise to disaggregate the backstop. Earlier this year, May considered putting the individual elements of the withdrawal agreement before parliament in separate bills and some of Johnson’s allies believe he should follow that course.
The theory is that MPs would approve every element of the withdrawal agreement except the Irish protocol containing the backstop, with the divorce bill held in reserve until the end of negotiations. The problem is that each bill would offer Grieve and his allies a fresh opportunity to table amendments to block a no-deal Brexit or to oblige Johnson to seek an extension beyond October 31st.
The EU's official position is that the withdrawal agreement, including the backstop, cannot be renegotiated and any change to that position will require a new negotiating mandate to be approved by a meeting of the European Council. A week after Johnson takes office, most of Europe's leaders will retreat to mountain and lake resorts for much of August and there is no appetite to interrupt their break for an emergency meeting about Brexit.
In the meantime, Britain will have to deal with EU chief negotiator Michel Barnier and the word is that Johnson has tapped attorney general Geoffrey Cox to lead his negotiating team. Cox thwarted May's hopes of winning a majority for the withdrawal agreement with legal advice that concluded that Britain could not unilaterally exit the backstop as it is currently drafted.
When he was involved in the negotiations, Cox sought a mechanism that would allow Britain to walk away from the backstop if negotiations towards a comprehensive trade deal had broken down irretrievably. And that could return as Britain’s final demand when negotiations enter their decisive phase in October.
In the meantime, Dublin, Brussels and other European capitals are happy to sit back and wait for Westminster to assert itself as the prospect of a no-deal Brexit approaches. If that prospect remains on the table in the middle of October, the EU can consider how much room for compromise is available.
In the meantime, political leaders in Dublin and elsewhere would be wise to enjoy their holidays, hold their nerve and allow events in Britain to take their course.