The UK is still looking for ways to change the substance of the Brexit deal agreed with the European Union despite having been repeatedly told that the withdrawal agreement cannot be reopened, according to a diplomatic note seen by BuzzFeed News.
The note is of a briefing made to the ambassadors of the EU’s remaining 27 member states on Wednesday afternoon following yesterday’s meeting between the UK’s attorney general, Geoffrey Cox, Brexit secretary, Steve Barclay, and the EU’s chief Brexit negotiator, Michel Barnier.
Tuesday’s meeting is described in the note as “negative.”
It states that Cox, who is leading the talks for the UK side, presented the idea of an “arbitration panel” that would determine if the two sides were acting in good faith and were being reasonable in their efforts to identify alternative arrangements to the backstop — the insurance policy that guarantees that there can be no hard border between the Republic of Ireland and Northern Ireland in all circumstances.
Cox also proposed the concept of a new “mini backstop” that would limit the mechanism to only cover elements that relate to border infrastructure.
Both ideas were rejected by Barnier. “[Barnier] requested fresh drafting,” the note read.
The diplomats were told that the arbitration panel as suggested by Cox was an attempt to lower the bar for exiting the backstop by introducing notions such as “reasonableness.”
The note states that the UK is in essence “questioning the legal stability of the backstop” and is trying to find a “legal solution to a political problem.”
The withdrawal agreement already includes clauses to deal with disputes. An initial political consultation would take place in a joint committee, and either party can refer the dispute to an arbitration panel. The agreement sets out how the arbitration panel is to be established, how the arbitrators will be selected, and the rules which govern its operation. However, if there is a question of interpreting EU law, the panel is obliged to refer the case to the European Court of Justice.
An EU source said the UK was in effect still looking for ways to unilaterally terminate the backstop.
EU leaders have remained adamant that the withdrawal agreement cannot be reopened, and that the backstop is needed “unless and until” other workable solutions that achieve the same purpose are in place. The backstop is needed to both avoid a hard border in Ireland and protect the integrity of the EU’s single market after the UK leaves. The bloc has offered to provide further assurances and clarifications, as well as as a roadmap to explore what role alternative arrangements to the backstop could play in future.
The diplomatic note explains that the UK could table revised proposals later this week, and talks could drag into the weekend, with Theresa May possibly heading to Brussels as late as Monday — the day before the meaningful vote is scheduled to take place in Parliament — to meet with Jean-Claude Juncker, the president of the European Commission.
The 27 diplomats were also told that the EU is getting ready for the “blame game”, and accusations of rigidity from British MPs, if next Tuesday’s vote fails.
If MPs reject the withdrawal agreement, they will get a vote the following day on whether to leave on March 29 with no deal. If, as expected, they reject that option too, they will then get a vote on whether to delay Brexit.