Change of course?

by: in Law
Houses of Parliament, London_MLR.jpg

With options running out before the United Kingdom faces yet another critical deadline, Prime Minister Theresa May tries one last (desperate) gamble to “save Brexit” – reaching out to the Labour Party. Will it be successful? Which are the options remaining on the table? What could happen next? Here’s a handy guide to the days ahead, in a question-and-answer format.

What happened on Tuesday?
Following the failure on part of the House of Commons to ratify the UK/EU Draft Withdrawal Agreement (DWA) (see also here) for the third time in a row, complemented by Parliament’s inability to signal a majority via the Indicative Votes process devised by Conservative backbencher Sir Oliver Letwin, Prime Minister Theresa May (Conservative) held seven hours of meetings on Tuesday – first, the so-called political cabinet (to discuss Conservative Party matters with senior cabinet ministers) and then, the full cabinet (involving all cabinet ministers). Upon emerging from the meeting, for the duration of which cabinet ministers had to surrender their cellphones to minimize the risk of leaks and press briefings prior to her announcement, Prime Minister May addressed the nation in a brief televised statement.

What did the Prime Minister announce?
First, she emphasized that she still wants the United Kingdom to leave with a formal agreement with the European Union. Second, that she will request a further extension of the deadline under Article 50(2) TEU until 22 May 2019 (subject to European Council approval). Third, that she will meet the Leader of the Opposition, Labour Party leader Jeremy Corbyn for formal talks. Fourth, that these talks are designed to find a new approach based on consensus between Prime Minister May and Mr Corbyn. Fifth, that failing an agreement, the Prime Minister (contrary to the process led by Mr Letwin) will facilitate a new Indicative Votes process and agree to be bound to the result of the deliberations in the House of Commons.

What does this announcement mean?
The announcement represents a reversal on Prime Minister May’s strategy thus far, which involved rallying a majority of her own governing Conservative Party, alongside her confidence-and-supply partner, the Democratic Unionist Party (DUP), paired with a sprinkling of Labour MPs from constituencies where majorities chose the Leave option in the 2016 national referendum.

Given the implacable opposition of the DUP to the Irish Backstop (the insurance policy designed to prevent the establishment of a hard border between Northern Ireland and the Republic of Ireland) and equally vociferous opposition by the nationalist-populist European Research Group (ERG) faction within the Conservative Party (commanding up to 80 MPs), Prime Minister May appears to have concluded that the most plausible way for some permutation of her Withdrawal Agreement to be passed is with the parliamentary backing of the Labour Party.

The Prime Minister, with her back against the proverbial wall, has now come up with a new avenue to resuscitate the DWA. Her elevation of Mr Corbyn as an interlocutor is an interesting step, considering the increased tribalism in British politics (with the Conservatives essentially having termed Mr Corbyn an unreconstructed Marxist and national security risk in the 2017 general election). Weakening her commitment to a Conservative Party-led withdrawal plan is equivalent to taking something of a risk – as initial reactions by hardline supporters of withdrawal show [1] [2] [3]. That said, only the hours and days ahead will demonstrate whether the Prime Minister’s resolve will be sustained or wither under a barrage of criticism of the right-wing press in the United Kingdom. No doubt, the machinations of some of the leading contenders in the race to succeed her for the Conservative Party leadership (and thus, presumably, the role of Prime Minister) will also need to be factored into the overall dynamic.

Can Prime Minister May’s opponents do anything?
Not internally, for the ERG faction launched an unsuccessful motion to vacate the Conservative Party leadership in December 2018 – and cannot do so for until the end of this year. Whilst there are rumblings of some Conservative MPs supporting a Labour-led parliamentary no-confidence motion, this would represent an unprecedented breach of party discipline, almost certainly requiring Conservative MPs voting against their own Prime Minister on a matter of confidence to formally resign the party whip (or be expelled, whichever came first). Interestingly, by reaching across the aisle to Mr Corbyn, Mrs May (at least for the duration of this cross-party approach) may have reduced the likelihood of the opposition tabling a parliamentary no-confidence motion with any plausible chance of success.

For Mr Corbyn, the offer of talks is a double-edged sword. On the one hand, he gets to appear statesmanlike and as a legitimate partner for discussions on the signature issue of Her Majesty’s Government for the past 3 years. His Labour Party’s plan of a permanent customs union, paired with substantive alignment with the European Economic Area, had been criticized as a vague wishlist. However, as the rising parliamentary support for both veteran MP Kenneth Clark’s customs union proposal and the “Common Market 2.0” (a Norway-style soft Brexit involving membership of the European Free Trade Association and the European Economic Area) shows, the parliamentary arithmetic may allow for a permutation of a softer Brexit to be passed by a majority in Parliament. The downside of Mrs May’s new approach is clear: if talks fail or if there is a hitch in the passage of any common plan, Mr Corbyn will (for the first time in 3 years) have to share in the blame for a mismanaged Brexit process – a dubious honour thus far only earnt by the Prime Minister and the hard right of the Conservative Party.

What are the individual parties’ policies in a nutshell?
Whilst various MPs have staked out a range of positions, the broad positions of the political parties can be described as follows:

  • Prime Minister May and her Cabinet remain officially committed to the DWA’s passage, even after three failures to do so. Unofficially, however, both her Cabinet and her Conservative Party are split between hardline proponents of withdrawal who want to leave the European Union without a formal agreement and advocates of close links to the European Union after the withdrawal becomes effective. Most of the Conservative Party’s grassroots membership and MPs appear to be positively predisposed to a No Deal scenario, which has been repeatedly warned against by an array of economists as courting a sharp decline in the United Kingdom’s Gross Domestic Product (with most forecasts estimating the negative effects at 10-11% of GDP).
  • The Labour Party has staked out an ambivalent position, given that most of its grassroots membership and MPs voted Remain in the 2016 national referendum. However, Mr Corbyn has historically been a Eurosceptic and has not excluded the possibility of voting Leave in a second national referendum on Brexit, should it be called by Parliament. Officially, the Labour Party’s priorities are: its own plan; failing that, triggering a general election; failing that, considering support for other options, including a second national referendum.
  • The combined remaining opposition (with the notable exception of the Democratic Unionists) can be described as emphatically favouring an end to the Brexit drama, preferably via a second national referendum. Liberal Democrats, Scottish Nationalists, Plaid Cymru and the newly formed Independent Group (former Conservative and Labour MPs who defected from their original parties to back a second referendum) all advocate the holding of a so-called People’s Vote.

What can still happen?
As of this morning, everything. No Deal (i.e. withdrawal from the EU without a formal agreement) remains the legal default option, both according to the revised terms of the United Kingdom’s withdrawal notification under Art 50(1) TEU and also according to s1(1) of the European Union (Withdrawal) Act 2018, an Act of Parliament enacted by the United Kingdom legislature. Parliament is formally on record, twice now, as being against No Deal (with No Deal options failing spectacularly in the Indicative Votes process, assembling decisive majorities of the House against them). There remains consistent opposition against a second national referendum, especially from hardline Leave supporters attempting to paint any proposals in this regard as a “betrayal” of the supposed popular will – casually ignoring that only 37% of all registered voters authorized the Leave option (i.e. 52% on a turnout of 72% of all eligible voters). Support in Parliament for this option is rising – and paired with some form of cross-party agreement, a confirmatory referendum (ostensibly to ratify said agreement) could be part of the solution to break the Brexit paralysis.

Additionally, momentum for some form of permanent customs union (implacably opposed by the Conservative hard right, as this would mean that the UK could not conclude its own trade deals) and EEA/EFTA membership (opposed by Leave proponents due to its implications for freedom of movement) is increasing in Parliament. However, the sharp divisions exposed by the 2016 national referendum – within Parliament and the wider electorate – should not be discounted. With tensions running high, the May/Corbyn talks (combined with the pressure of the 12 April deadline) could be just what could heal the current political paralysis – or they could be scuttled by the nationalist right wing within the Conservative Party, wishing to see the United Kingdom leave without a formal agreement.

What about the EU27 position on this?
The European Union is clearly getting exasperated by the indecision, policy paralysis and sheer incompetence emanating from the corridors of power in London. Being fully abreast of all developments, it is aware that the United Kingdom no longer has a Prime Minister in full command of her brief and a cabinet warring with itself. Thus, some voices have already suggested that it might be better to allow the United Kingdom to be thrown into a No Deal to end the Brexit drama once and for all. However, these voices overlook a couple of things: First, the United Kingdom is going nowhere. It is not in the EU27’s interest to trigger a No Deal – especially western European countries would be affected by No Deal [1] [2], which is why countries like Germany and France will make the best possible effort to throw a lifeline to the UK Parliament. Second, the dynamics of recent events (with a second referendum getting the most affirmative votes in the Indicative Votes process) are pointing towards either a softer Brexit (with the UK thus maintaining a close relationship with the European Union) or even a full-scale revocation (most likely after a second national referendum) of the intent to withdraw.

That said, under the terms of the European Council’s latest decision, Brexit Day remains 12 April 2019 (the final date on which the UK can notify the European Council of its intent to participate in the 2019 European Parliament elections). Unless an alternative solution is agreed to fast, at least to the extent that the United Kingdom can “indicate a way forward”, it is unlikely that the European Council (the final authority on any extension request) will grant a long extension – resulting in the United Kingdom departing without a deal.

However, a general election (unlikely due to the provisions of the Fixed-Term Parliaments Act 2011, requiring either a successful motion to trigger early elections, supported by 2/3 of all House of Commons MPs OR a successful no-confidence motion, followed by a failure to form a new government within 14 days) or a second national referendum (most likely in the shape of a vote aimed at instructing final ratification) would count as valid and viable reasons to grant an extension. 

What about the Cooper Bill?
Senior Labour MP Yvette Cooper introduced a bill yesterday that would effectively instruct Prime Minister May to agree to a long extension if it is offered by the European Council, even in defiance of Her Majesty’s Government’s stated policy to only seek an extension of up to 22 May 2019 – with the stated objective being to prevent No Deal. After an accelerated legislative process featuring all three readings and the committee stage being conducted in the Commons chamber, the House of Commons passed the bill, by one vote, 312 votes to 311. Provided the House of Lords agrees to the bill, which is quite likely, upon Royal Assent, Brexit opponents (and especially those of No Deal) may have a powerful new weapon with which to prevent the United Kingdom’s disorderly withdrawal from the European Union. However, there are credible misgivings about the drafting of the legislation which need to be taken seriously.

Once again, a new week brings renewed uncertainty for the United Kingdom – but maybe the seeds of a potential way forward. We will just have to wait and see.

 Image by Flickr - Michael Levine-Clark

  More blogs on Law Blogs Maastricht