Imagine if the summit had agreed to Theresa May’s request. If the leaders had signed up to a legal declaration on the backstop that made clear it was temporary, even time-limited.
The British prime minister would have returned to the Commons waving a piece of paper declaring peace in our time, a deal done, sufficient reassurance . . . and MPs would have said thank you, we'll bank that, but it's not enough. And sent Mrs May back to get more.
These are seasoned politicians, heads of government, well used to the cut and thrust of difficult negotiation, who understand parliamentary manoeuvres. That she thought they would sign up to anything without a copperfastened guarantee that her MPs would wear it, illustrates again, observers say, the political naivety that has characterised British Brexit diplomacy.
Danish prime minister Lars Løkke Rasmussen, on his way out of the late-night meeting, made the leaders' message clear: "Someday, somebody needs to say it . . . and you have to say – openly – that it is necessary that you get some homework done in the British parliament, which has handled this challenge very differently to Denmark, when the Danes voted No to Maastricht, or the Irish, when they voted No to Lisbon.
“In both countries someone took responsibility to decide what do we do. In both Denmark and Ireland somebody took it upon themselves to say what can unite us in our country and what should we ask from Europe.”
Clear assurance
In the wake of a 2016 Dutch referendum defeat for an EU treaty on relations with Ukraine, prime minister Mark Rutte came to fellow leaders with proposals for a "clarification" of the treaty, but with a clear assurance that his parliament would endorse the treaty if they agreed to the clarification.
The EU leaders accommodated him, as did his parliament.
Mrs May can offer no such assurances. And EU leaders, who read newspapers, are only too well of that reality. They will not buy a pig in a poke.
The deletion of a reference in the draft conclusions to a suggestion that leaders were “ready to examine whether any further assurance can be provided” was agreed without any opposition, diplomats say. But president of the European Council Donald Tusk was saying on Friday night that although he has “no mandate to reopen any new negotiations”, and that the withdrawal agreement could not be touched, “I am always at Mrs May’s disposal.”
The expectation now is that she will try both to make her request for clarification more specific and, with no doubt some difficulty, provide in return some assurances to the EU that this will fly with the Commons. It is also expected that she will come back to another special summit in January. And may well fail again.
Lifespan
Ireland, though Irish diplomats were careful not to claim credit for it, was also successful in removing a reference to a “short” duration for the lifespan of the backstop – any time limit is anathema. And for adding an explicit requirement that any replacement would have to “ensure that a hard border is avoided”, an understood but unstated qualification.
Although Mrs May left with a confident insistence that she was in a better place to get the deal past, leaders’ prognoses were somewhat grimmer, and perhaps more realistic. There was much talk of stepping up no-deal planning.
Belgian prime minister Charles Michel, on his way out, echoed the common view that a no-deal scenario was now "a realistic prospect".
“Very objectively,” he said, “the signs that we were given yesterday were not especially reassuring as to the ability of the parliament to be able to honour the commitment that was given.”