In her 20 May speech in Central London, the Prime Minister set out ten points to be incorporated in the Withdrawal Agreement Bill in a fourth, and probably final, attempt to secure the House of Commons' approval for the proposed deal. Those ten points were set out as follows:
- The government will seek to conclude alternative arrangements to replace the backstop by December 2020, so that it never needs to be used.
- A commitment that, should the backstop come into force, the government will ensure that Great Britain will stay aligned with Northern Ireland.
- The negotiating objectives and final treaties for our future relationship with the EU will have to be approved by MPs.
- A new workers’ rights bill that guarantees workers’ rights will be no less favourable than in the EU.
- There will be no change in the level of environmental protection when we leave the EU.
- The UK will seek as close to frictionless trade in goods with the EU as possible while outside the single market and ending free movement.
- The UK will keep up to date with EU rules for goods and agri-food products that are relevant to checks at border protecting the thousands of jobs that depend on just-in-time supply chains.
- The government will bring forward a customs compromise for MPs to decide on to break the deadlock.
- There will be a vote for MPs on whether the deal should be subject to a referendum.
- There will be a legal duty to secure changes to the political declaration to reflect this new deal.
Introducing those ten points, the Prime Minister acknowledged that previous attempts to secure approval through a combination of the Conservative and DUP votes had failed, and that cross-party support was now required for a "compromise" approach. The inference is that the Withdrawal Agreement Bill will fail unless sufficient opposition votes can be secured. The most likely date for that vote is in the week commencing 3 June, perhaps as late as 7 June.
Throughout her speech, the Prime Minister emphasised that key elements of the ten point plan would be entrenched in law. For example, the government would be "legally obliged" to seek "alternative arrangements" (presumably involving technology) for the Northern Ireland border before the backstop arrangement comes into operation. The government would also bind itself to a guarantee on workers' rights and environmental protections. The attractiveness and force of those offers must be diminished by the uncertain outcome of key elections, beginning with the European Parliament elections on 23 May and extending to the next general election, whether in 2020 or called as a "snap" election before that date by a new leader of the Conservative party. Should that cycle of elections produce a House of Commons with a radically different composition (for example, strongly pro-Brexit) then any attempt at legal entrenchment would be vulnerable. One Parliament cannot bind its successors.
Similarly, the proposed "customs compromise" is likely to involve a temporary customs arrangement, probably little or no longer than the transition period proposed by the existing draft Withdrawal Agreement.
The ten point offer also includes reference to a "referendum". In her speech, the Prime Minister referred only to a "confirmatory referendum". For many MPs a simple confirmatory referendum would not suffice, as the question might be limited to accepting or rejecting the terms of any proposed deal. It would not necessarily include an option to revoke the UK's Article 50 notice and to remain a member of the EU. Indeed, the Prime Minister made clear her opposition both to a further referendum, and to any revocation.
Cross-party talks ended without agreement, not least because the Labour Party took the view that any concession or compromise offered by the Prime Minister might be overturned within months by her successor in office.
On each of the ten points, MPs will have to scrutinise the detailed provisions of the Withdrawal Agreement Bill when it is published within the next few days. It remains entirely possible that the Bill will fail to secure a majority, with many MPs likely to conclude that the "ten steps" cannot be regarded as durable or workable. In that case, a "no deal" Brexit would remain both as the default legal position, and as an outcome that has moved from "unlikely" to one that is actively sought by increasingly voluble elements of the Conservative party, whether buoyed up or spooked by the prospect of Brexit Party successes in the European elections.
The tenth point also (arguably) promises the undeliverable. Amendment to the Political Declaration would be a matter for negotiation with the EU. Parliament might vote, and the government might ask for changes, but it is not a foregone conclusion that the EU would agree.
After several weeks of inaction and stasis, Brexit has undoubtedly entered a new phase. The results of the European Parliament elections are likely to inform debate over the next few weeks, either helping to determine the outcome of the next House of Commons vote, or even possibly creating a situation in which that vote is abandoned. Crucially, the legislation narrowly passed in March to avert a "no deal" Brexit (the Cooper-Letwin Act) is spent and cannot be used again. Further legislation would be required to avert a "no deal". Consequently, businesses must consider resuming or stepping up preparations and resilience measures.