Theresa May went to Brussels to get concessions on the Brexit deal – in the hope that the controversial “Irish backstop” could be scrapped. But she was sent back empty-handed. 

What happened?

The prime minister met the heads of all the EU institutions and was told the same thing: we won’t renegotiate the withdrawal agreement.

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However, they said they would be happy to change the political declaration for the future relationship.

What’s the difference?

The withdrawal agreement is a binding legal contract – it covers issues like what happens to EU citizens in the UK, the divorce bill, and, most controversially, the Irish backstop policy.

But there is another part of the agreement between the UK and EU. Its full name is “the political declaration on the future relationship”. It isn’t legally binding, but it spells out what sort of relationship the EU and the UK government intend to have after Brexit – whether or not the UK is in the single market, customs union, etc.

What’s currently in the political declaration?

It’s very vague. You may remember “Chequers” – that was Theresa May’s plan that she agreed with her cabinet, after negotiating with her own party. That’s not happening – the EU has rejected it. 

The declaration is currently more-or-less meaningless, spelling out both the EU and the UK’s red lines. It leaves actual decisions on the future relationship for the future. But unless the UK’s red lines shift, it essentially points to a hard Brexit – border checks on goods, no free movement, and the like.

Why would the EU suggest changing the political declaration if the backstop is the problem, and it is in the withdrawal agreement?

There are two reasons. The first is technical: the future relationship, as it currently stands, would not prevent a hard border in Ireland. The EU sees the backstop as an insurance policy against a hard border in Ireland – no matter what future relationship is negotiated, there won’t be one as long as the backstop can come in.

But a more ambitious future relationship that kept the UK aligned with the single market and customs union would prevent a hard border by itself – and mean the backstop never needs to happen. In that way, it is related to the backstop. 

The second reason is political: changing the declaration is key for those who support a soft Brexit. Labour says it will support the deal in parliament if the future relationship is changed to include alignment with the single market and a customs union, as well as protections for workers’ rights. 

So why doesn’t Theresa May renegotiate the future relationship to pass the deal?

Softening the Brexit laid out in the future relationship would have the opposite effect on the Tories as it would to Labour: most of Theresa May’s own MPs would become even more hostile to it, and her.

She might be able to pass the Brexit deal with Labour support – if she made it that far. But her party would be in uproar. They don’t like the backstop – or even Chequers – because they see it as too similar to being in the EU. Labour’s plan for a permanent customs union and single market alignment would likely alienate even more, because it represents even closer alignment to Brussels.

There are some Tory MPs who would welcome a softer Brexit, but they are thought to be in the minority. 

So would Theresa May be ousted if she backed Labour’s demands?

It’s not easy to predict what would happen. In one sense, she is safe: she cannot be formally ousted as leader of the Tory party for another 10 months. This is because under the party’s rules, a leader cannot be challenged for a year after they survive a first attempt at being toppled from within, as she did late last year.

However, she is not immune from the entirely separate parliamentary confidence votes that take place in the Commons. These are the standard votes of all MPs on whether they have confidence in the government. She would remain leader of the Conservative Party if she lost – but no longer be prime minister

Whether livid Tory MPs – or the DUP on whom she relies for support – will continue to support her in these votes is an open question. There is no limit to how many can be called or when.

Alternatively, even if she cannot be formally ousted, the party might simply become ungovernable. May might struggle to fill her front benches and be in a state of open warfare with the rest of her party. That situation has effectively forced other party leaders to resign, even when they cannot be technically made to leave.

Or it could all be fine. We can’t predict the future – but she certainly has good cause to be worried.

 

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People say the political declaration is not legally binding – is that true?

Yes, it’s simply a statement of intent by the two parties. But political declarations are still important – you can’t be taken to court over them, but if the political pressure is still there to enforce them, they have an effect. 

For example, the part of the Good Friday Agreement that says there should be no hard border is a political declaration. The situation the UK is currently in shows that has real force – as long as there is political will to enforce it.

It is likely that Labour would hold the government to its political declaration of the future relationship with the EU – if the declaration was discarded later, the government would have no majority for the Brexit it sought.  

Got an unanswered question about Brexit? Send it to editor@independent.co.uk and we’ll do our best to supply an answer in our Brexit Explained series

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