Summary

  • Government strategy thrown into disarray by Speaker’s ruling that Parliament cannot vote on the May withdrawal deal again
  • The threat of no deal Brexit on 29 March has been reduced, but not entirely removed
  • The threat of no deal Brexit at some point in the future is still there, but remains small
  • Brexit will almost certainly be delayed, at least until May / June, but more likely for longer
  • Longer delay would be likely to lead to a “softer” Brexit with closer alignment to the EU
  • Determining the future EU-UK trade relationship remains heavily dependent on arrangements over the Irish border
  • These will form the baseline for all other UK trade relationships, including the UK-US FTA

 “Confusion now hath made his masterpiece”  Shakespeare: Macbeth Act II, Scene 3

What has happened?

  • Monday 11th:  Theresa May made a late night dash to Strasbourg to meet Commission President Juncker, and returned with what she said was a legal improvement to the Irish border backstop, making it easier for the UK to withdraw.
  • Tuesday 12th:  Early hopes that momentum could build towards the vote on the PM’s withdrawal deal were dashed when her colleague the Attorney-General published his advice:  while the PM had secured stronger exit rights in the event of demonstrable bad faith by the EU, the improvement secured by the PM did not change his core legal advice on the risk of the UK being “trapped” in the backstop.
    • Parliament voted by 391 votes to 242 (a majority of 149) to reject the PM’s withdrawal deal:  a significant improvement on the historic 230 majority against on January 15th (39 MPs switched sides, including some prominent Brexiteers), but still one of the largest majorities against a Government proposal.
  • Wednesday 13th:  Parliament debated a Government motion to rule out a no deal Brexit, but also noting that no deal remains the default in the absence of a deal, which was then amended (by a majority of 4 votes) to rule out no deal in any circumstances, turning the Government against it.  The amended motion passed by a majority of 43 (321 to 278) with a number of Ministers abstaining rather than voting against.  The motion has no legal force, but is a strong expression of Parliamentary opinion which the Government cannot simply ignore.
    • At the beginning of the day, the Government published its tariff plan for a no deal Brexit (87% of imports to be tariff free) – produced with minimal consultation of business – and its plan for the Irish border (which could be characterised as a combination of smugglers’ free-for-all and an honesty box so unobtrusive and far from the border as to give no offence)
  • Thursday 14th:  Parliament debated a Government motion to request an extension to the Article 50 timetable until the end of June, so long as Parliament has approved the Brexit deal, or if Parliament has not approved the Brexit deal the Government will need a longer extension, thus requiring the UK to participate in the European Parliament elections in May.  The motion was approved (412 to 202 votes) after a number of amendments failed, including one (by just 2 votes) which would have given Parliament the power to hold a series of indicative votes on alternative Brexit models, and one (by a wide margin) calling for a further referendum.
  • Monday 19th:  the Speaker ruled – following Parliamentary convention – that Parliament could not vote twice on a proposition that was the same or substantially the same:  “a demonstrable change to the proposition would be required” for there to be a further vote on the PM’s withdrawal deal.  “For something to be different it has to be fundamentally different, not in terms of wording but in terms of substance.”
    • The Government has announced that it will bring forward a Statutory Instrument to make the necessary change to UK law to allow an extension to the Article 50 timetable.

 

What happens next?

According to the Government’s plan, the withdrawal deal would have come back for a further meaningful vote in the first part of this week.  It was already looking difficult for the Government to turn the 75 MPs they would need to switch votes, when the Speaker ruled that there must be a demonstrable change to the Government’s withdrawal deal (in this blog, by “withdrawal deal” means Withdrawal Agreement – the proposed Treaty – and the Political Declaration on the future relationship between the UK and the EU).  The Speaker is understood not to have given the Government any notice of his ruling.  It is open to the Government to bring the same issue for decision in a future session of Parliament.

Formally, the legal position remains that, in the absence of anything else, the UK will leave the EU on 29th March.  Unless the UK decides to rescind the Article 50 notice, and effectively cancel the Brexit process (which the Government has ruled out doing), for the Brexit date to change, two things have to happen:

  • The EU has to agree to an extension to the Article 50 process.  This is on the agenda for the European Council meeting this week, on 21st March.  The European Council can only decide to extend the process by unanimity.  The UK – and the Prime Minister particularly – will come under great pressure to specify the purpose of the extension.  Then there is the question for how long.  In the view of some jurists, if the UK is a member of the EU still on 23rd May, it must participate in the European Parliament elections.  But the Parliament does not convene until 2nd July, so the UK’s failure to elect MEPs will have no practical effect until then.  A strict interpretation would limit an extension to 22 May, but the EU may judge there to be no risk to any challenge to the validity of the Parliament so long as the UK is no longer a member by the time the Parliament convenes.  However it is clear that any extension beyond 1st July puts the question of UK participation in the European elections squarely on the table, in addition to whatever other conditions the European Council decides to impose.
  • UK law (the European Union Withdrawal Act) has to be changed,  which requires a Statutory Instrument – proposed by the Government – to be approved by both Houses of Parliament.

“The report of my death was an exaggeration”  Mark Twain

The Government’s plan of course relied on Parliament reversing majorities of 230 and 149 against the PM’s withdrawal deal.  The withdrawal deal has been pronounced dead several times by numerous MPs and commentators, but it is proving remarkably resilient.  It may still be premature to pronounce it dead, though the Speaker’s intervention has certainly blown a large hole in its life-support system.  Frankfurter Allgemeine Zeitung asked at the end of last week whether it is a zombie or a phoenix – it is clearly now in zombie state, but do not be surprised if it re-emerges at some point in the future.  Government Ministers are still talking about the possibility of a further vote, and the procedural books are doubtless being scoured for a way to make that happen.  Assuming change is necessary, it will take longer:  of the key elements of the deal, the Withdrawal Agreement is the hardest to change.  Achieving substantial change, as well as finding alternative ways to address the Irish border backstop, can more easily be done by putting more substance into the Political Declaration – given the complexion of Parliament, that process is however more likely to lead to further challenges to the UK’s red lines, and a softer Brexit.

 

So where does it all leave us?

Parliament has asserted itself, but has not yet succeeded in taking control.  The Speaker has asserted himself and dropped a bomb on Downing Street.  The Prime Minister’s authority in her Cabinet, party and Parliament has been seriously – perhaps fatally – eroded.  Last week saw four Cabinet Ministers defy a three-line whip and keep their jobs, and a Cabinet Minister closing a debate with a strong argument to Parliament to support the Government’s proposal for a realistic extension to Brexit and then voting against it himself.  This week has already seen the Government fail to anticipate the Speaker upholding long-standing Parliamentary precedent (dating back to 2nd April 1604) and so deny the Prime Minister her preferred  strategy of forcing Parliament into a choice between the withdrawal deal and no deal Brexit on the one hand, or long delay on the other.  Unless the Government can find some way to get round the Speaker’s ruling, the choice is now clear:  long delay (which may yet lead back to the withdrawal deal in time), or no deal Brexit.  The first is the expressed will of Parliament;  the second is the law of the land.

The question now for British Parliamentarians is whether you try to define the future relationship between the UK and the EU before exit or after.  There has been much focus on the lack of unilateral withdrawal provisions from the Irish border backstop.  But the lack of unilateral ability to withdraw from or radically deviate from the Good Friday Agreement is the underlying determinant (and no British politician would argue that the UK should go back on the GFA).  The GFA does not require there to be no hard border, but there is much argument that the re-establishment of hard border infrastructure would mark a strongly regressive step in the implementation of the GFA, and as such would be incompatible with the GFA.  Hence the UK Government’s rather preposterous no deal border policy:  you simply leave the border wide open.

The Brexiteers have welcomed the Speaker’s decision:  it removes them from the immediate trap the Government had set for them.  It opens the way for a “no deal” Brexit, which some of them want.  However, given the clear majority in Parliament against a “no deal” Brexit, and the Speaker’s ability to use the flexibility of Parliamentary convention, the Speaker’s ruling also makes the prospects for a longer delay to the Artcile 50 process, and more Parliamentary input to the definition of the future relationship – both of which point strongly towards softer Brexit model – more likely.  The Government has said it will propose the necessary changes to UK law to delay the Brexit date:  this is likely to command a strong Parliamentary majority.  Parliamentary opinion would define the future relationship in ways likely to lead to closer integration with the EU than the Brexiteers would want.  The Brexiteers favour a relationship along the lines of the EU-Canada FTA, but even this would need a very high degree of regulatory and tariff alignment in order to minimize the Irish border impact (unless new technology provides an answer at some point in the future).  Labour argues for a renewed customs union, which would constrain the UK’s ability to run its own trade policy.  Pro-European MPs favour the European Economic Area (Norway) – EEA, which would raise questions about the point of Brexit (Norway’s position is best described as a waypoint on the way in, not an exit route).  Increasing focus is being paid to a cross-party model called “Common Market 2.0”, which would involve the UK going into the European Free Trade Area – EFTA (ironically founded by the UK in 1960).  EFTA currently has four members, three of which (Norway, Iceland and Liechtenstein) are members of the EEA; Switzerland is not.  In fact, if Parliament could agree the future direction quickly, the adaptations to the current withdrawal package need not take very long:  the Withdrawal Agreement would remain;  the Political Direction on the future relationship would be amended, and by doing so provide a pre-agreed route out of the Irish border backstop (and the substantive change the Speaker has ruled necessary).  If that is a pre-existing structure (EEA or EFTA) there would be much greater comfort about sorting out the details later.  If it is a wholly new FTA, there is much more uncertainty and hence in the mind of the Brexiteers scope for the EU to leverage its strength and veto over the route out of the backstop.

 

Meanwhile, there’s another party involved in this process….

Over in the EU, the UK’s Parliamentary contortions have given rise to exasperation and irritation.  The Prime Minister will write to the European Council requesting an extension to the Article 50 process, which will be debated at the Council’s meeting on 21st March.  While the EU is unlikely to refuse the UK’s request (and thus precipitate a “no deal” Brexit), the debate is unlikely to be a comfortable one for the Prime Minister.  It would not be unreasonable for the EU leaders – who have lost faith in Theresa May as a negotiating partner – to expect her to be clear about the purpose of the extension:  simply giving more time to allow the UK’s parliamentary stalemate to continue is very unlikely to command support.  If the Prime Minister is unable to give a satisfactory description of the purpose of the extension, it is likely that the EU will make any agreement to extension conditional.