EU said to mull legal lifeline to help May sell Brexit deal

European leaders will consider going at least some way to giving Theresa May what she’s asking for to sell her Brexit deal at home.

At a summit on Thursday, they will discuss publishing a new declaration to ease concerns about the most contentious bit of last month’s Brexit deal - the so-called Irish backstop. It would have legal force, according to two EU diplomats, who declined to be named as the discussions are private, and still in the early stages.

A summit will probably be called in January to sign off on any new declaration, they said. 

Leaders will consider whether to issue a memorandum then that could include an aspirational end-date for the backstop, according to the two EU diplomats. The idea is to allay British lawmakers’ fears that the agreement could trap the UK in the EU’s orbit indefinitely.

EU Commitment

The backstop was designed as an insurance policy to prevent a new border on the island of Ireland, but it now applies to the whole UK and risks locking Britain into EU rules forever.

The declaration, which would avoid re-opening the Brexit divorce treaty but would sit alongside it, would have legal force and effectively oblige the EU to make all attempts possible to complete a full trade deal to replace the backstop by a set date, the diplomats said. The UK could take the EU to an independent arbitration panel if it believed this obligation hadn’t been fulfilled.

May has been pressing EU leaders to issue legal and political assurances that the backstop won’t be indefinite. As they arrived at the summit on Thursday, leaders including French President Emmanuel Macron said no new legal changes could be made.

Before the discussion between the 27 leaders, May was given a chance to present her case and take questions from her peers. In her speech, the British Prime Minister raised three demands, according to a separate EU diplomat familiar with the proceedings of the Summit in Brussels:

Assurance that the bloc doesn’t want the backstop to be used An agreed political declaration on the future ties between the two sides to be added as an annex to the draft Withdrawal Agreement, so that it gains a legal standing in itself. 

But as it stands, the deal that was the product of 17 months of negotiations won’t pass the UK Parliament. If it doesn’t get approved, then there’s a risk that the UK crashes out of the bloc without a deal, with potentially catastrophic consequences for citizens, business and markets.

While the idea is gaining momentum, some countries are still reluctant to agree to it, the diplomats said. The plan will also depend on what May says to the leaders at the summit, they said.   

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