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by: in Law
Brexit update blog Prashant 11 April 2019

Britain gets a hard-fought extension, with incalculable consequences.

The spectre of failure hung over the proceedings. The final decision came down to a single man, the leader full of vision and commitment to his vision of Europe – he had given speeches outlining his ideas, struck up a friendship with the German chancellor, signed a treaty of friendship with the old adversary and emerged as one of the preeminent statesmen of a continent seeking to recover from a recent crisis. The United Kingdom’s request in front of him, he felt threatened – he believed that the country would be a Trojan Horse representing a menace to his specific idea of Europe. Thus, he said the simplest of French words: Non. That was the end of the matter.

During yesterday’s European Council, memories of Charles de Gaulle suddenly echoed through the audience raptly awaiting word about the United Kingdom’s request to further extend the deadline to settle the modalities of its proposed withdrawal from the European Union. President Emmanuel Macron, known for regularly quoting the charismatic first President of the Fifth Republic, was indeed pondering whether to give life to rumours of him doing a proverbial de Gaulle and shut the door on the United Kingdom’s membership with a sudden Non to Prime Minister Theresa May’s extension request – and thus precipitating a No Deal Brexit this coming Friday. According to all credible estimates by leading economists, such a disorderly and sudden withdrawal would lead to major damage to the economies of both the United Kingdom and, crucially, several key Member States of the remaining European Union (“the EU27”) as well.

What was decided last night
At the end of the night, cooler heads prevailed – to some extent. After many hours of back-and-forth, with different dates and strategies making the rounds, here is what the European Council ultimately agreed:

  • The United Kingdom will remain in the European Union until 31 October 2019 at the latest. In the event of the British Houses of Parliament enacting the Draft Withdrawal Agreement (DWA) and the Political Declaration on the Future Relationship at an earlier date (followed by ratification by both the European Council, via a qualified majority, and the European Parliament), the United Kingdom will leave the European Union on the first day of the month following ratification of the DWA.
  • Considering that the extension will now definitely last beyond 23 May 2019, the United Kingdom will participate in the European Parliament (EP) elections scheduled for 23-26 May 2019 across the European Union. Whilst the campaign has not started yet, political observers are currently predicting gains for smaller parties (at both ends of the Brexit debate) coming at the expense of the two major political parties (Conservative and Labour). If the UK refuses to hold EP elections, even in the event of a DWA not having been ratified, an automatic withdrawal will take place on 1 June 2019.
  • Additionally, the European Council emphasizes the inviolability of the DWA and the principle of sequencing of talks (i.e. the technical issues concerning the United Kingdom’s withdrawal preceding any concrete negotiations about the future EU/UK relationship. This is particularly aimed at Conservative MPs in the House of Commons (particularly from the populist-nationalist right), some of whom keep reintroducing the notion of a “better deal” under a new Conservative leader and re-floating ideas (like the twice-defeated Malthouse Compromise, the Brady Amendment or other such schemes) which have already been politely (or less politely) rejected by the House of Commons, the EU27 or both. The EU27 are crystal-clear in their message: The DWA is the only technical agreement on withdrawal in town – meaning that the United Kingdom, under any Prime Minister must comply with the Irish Backstop, pay its remaining financial settlement and accept the inviolability of the Four Freedoms (and the EU legal order) before proceeding to future talks. Whilst unlikely to be heeded, this is a firm reminder to any Conservative leadership aspirant that the EU27 will remain firm, regardless of whether the new Prime Minister’s last name is Hancock, Hunt, Gove, Raab, Davis, Javid, , Morduant, Williamson, Patel, Rudd, Truss, Williamson et cetera. To a limited extent, it is also aimed at the Labour Party whose leader Jeremy Corbyn (aided by his most enthusiastic supporters) effectively make the same promises, except from the left-of-centre.
  • However, the EU27 is equally clear that the Political Declaration on the future relationship of the two sides can be reopened and amended swiftly, if the United Kingdom (whether under Prime Minister May or a successor) were to follow a new approach, for instance by means of a customs union, membership of the Single Market (like most EFTA states, sans Switzerland), a combination of a customs union and a Single Market (the Norway Plus model), a network of bilateral agreements (like Switzerland), a CETA-style free trade agreement or some novel model tailored to the United Kingdom’s needs (and respecting the overall legal order of the EU, especially the Four Freedoms) – this is a message broadly aimed at Parliament in London: “Get your act together and agree on something, anything, and we will amend the Political Declaration accordingly”. The scope and technical detail of that future relationship would need to be negotiated after the United Kingdom’s withdrawal.
  • Meanwhile, the United Kingdom has reaffirmed its commitment to the principle of sincere cooperation under Article 4(3) of the Treaty on European Union (TEU). In other words, where possible, it will seek to enable the functioning of the Union institutions and refrain from any irresponsible actions (such as empty-chairing important policy fields by indiscriminately using its veto) that could risk the fulfilment of the Union’s essential objectives. This was a statement aimed at hardline extremists within the Conservative Party, such as MPs Jacob Rees-Mogg and Mark Francois, that the United Kingdom should seek to sabotage the EU from within. Clearly, lack of senior government experience of both these gentlemen may have played a part in their wilful ignorance of EU (constitutional) law – to which the United Kingdom remains party until the final day of its membership, as enabled by section 2(4) of the European Communities Act 1972 (which is the law that effects the country’s EU membership in UK national law).
  • Contrary to initial rumours, the EU27 did not attach any conditions to the UK’s membership, instead choosing to emphasize the United Kingdom’s status as a full member of the European Union, with all rights and responsibilities fully intact until the day its withdrawal becomes effective – this is also in keeping with the position of the Court of Justice, as articulated in the Whiteman judgment handed down in December 2018.
  • Crucially, another element of Wightman is also underlined – the ability of the withdrawing Member State to unilaterally revoke the notification submitted to the European Council under Article 50(1) TEU – whether as the result of a second national referendum or the Prime Minister’s lone decision (though the corollary of the Prime Minister needing to consult Parliament in regard to invocation of Article 50(1) TEU would also appear to mandate Parliament’s consultation concerning revocation). The European Council also sends a clear message to anyone wishing to assign blame to the European Union for a disorderly withdrawal. No Deal would not be an inevitability, but a deliberate choice on part of the United Kingdom Government (and the governing party) to harm its own country’s economy. This is made all the more credible when one considers the nimbleness and professionalism displayed by the EU negotiating team around Michel Barnier (who has repeatedly signalled his willingness to consider other models for the future EU/UK relationship, if only Prime Minister May abandoned at least some of her Lancaster House speech red lines).

From long extension to a “flextension”
Last night’s discussions had been preceded by German Chancellor Angela Merkel facing the lower house of her country’s parliament, the Bundestag, and arguing forcefully for giving the United Kingdom more time to put its affairs in order. In a moment of levity, a particular sartorial feature led to plenty of laughter between her and Prime Minister May when they encountered each other during the emergency summit. Meanwhile, France had repeatedly made clear that first, an extension was no guaranteed; second, that any extension would have to serve a purpose; and third, that the EU27’s legitimate interests had to be safeguarded at all times.

This was code for the potential of the United Kingdom to interfere with the smooth operation of the EU whilst remaining a Member State – for example, through a callous exercise of its national veto to cause policy paralysis. Most notably, this supposed “strategy” was being furiously tweeted about by leading proponents of the Conservative Party’s hard right, including MPs Jacob Rees-Mogg and Mark Francois. The problem with this approach would be simple: whilst satisfying the nationalist fervour of extremist Brexit supporters, it would effectively kill the chances of reaching any kind of favourable free trade deal for the United Kingdom after its withdrawal. Britain would be cutting off its proverbial nose to spite its face. Pointless, self-destructive and far from being as intellectually sharp as Brexiters (for all their snarling about supposed metropolitan elites) like to present themselves as.

Parisian Gambit
However, back to President Macron – who, as it turned out, brought his best de Gaulle impression to the conference table yesterday. Once Prime Minister May had concluded her presentation to her EU colleagues, she was sent out of the conference room – whilst the other 27 heads of government would discuss the future of the United Kingdom. Reportedly, 17 Member States expressly favoured a long extension until March 2020, with Greece emphatically stating that such an extension would represent a “humiliation” to the proponents of a withdrawal – widely seen in the national capitals of the remaining EU27 as having campaigned and won on a raft of dishonesty and wishful thinking that should not be rewarded. In the course of the evening, it became clear that there was only one holdout: France. Mr Macron repeatedly kept insisting that the extension should only be granted until 30 June, in the absence of a viable plan by Prime Minister May – who had sought to placate the EU27 leaders by referring to the cross-party talks she initiated with the opposition Labour Party.

At this juncture, it can only be surmised what may have driven President Macron – someone who campaigned on closer integration of the European Union and recently signed the largely symbolic Aachen Treaty with Chancellor Merkel – towards taking such a hardline position. However, it stands to reason that his performance was primarily aimed for an audience back home in France – logical once one considers his record-low 27% approval rating, his inability to quell the Yellow Vest protests, his stalled Eurozone reform proposals and the impending departure of Chancellor Merkel from the political scene.

Standing strong on Brexit offered the opportunity to demonstrate resolve and French national influence on the European stage. The question is: Did Mr Macron overplay his hand? There was considerable upset and anger at the intransigence that the French President reportedly displayed during the emergency summit. As ever, this anger can be short-lived and a sign of frustration with the entire process. It can also herald the undermining of a leader’s stature. Just ask David Cameron after he became an obstacle to a Treaty change that would have enshrined the establishment of the European Stability Mechanism in the Treaties.

Can the “flextension”, originally floated by the President of the European Council, Donald Tusk, help with breaking the Brexit impasse? Here are a few first thoughts, in question-and-answer format to help you navigate the Brexit mess.

So, are those talks between the UK Government and the Labour Party going anywhere?
To be very clear, the fact that the talks are taking place at all represents a substantial shift from Mrs May’s original strategy, which only involved her Conservative Party (currently governing as a minority government) and the Democratic Unionist Party, its confidence-and-supply partner. Since both the hard right within the Conservative Party and the DUP refused to ratify the DWA, Prime Minister May turned her attention to the Labour Party. However, the talks are currently stalled, with the Labour Party claiming the Prime Minister is not deviating from her famous Lancaster House red lines (no jurisdiction of the Court of Justice; no freedom of movement; no substantial financial contributions to the EU budget). An additional factor that stands in the way is the increasing polarization in British politics, with Conservatives and Labour grassroots increasingly seeing the other side as an unacceptable enemy to be fought. With Jeremy Corbyn located at the left of the Labour Party and Theresa May vacillating between the hard right and the centre-right, the prospects for an agreement do not look bright. Additionally, conflicting priorities are likely to hamper the talks as well: the notion of a customs union (vociferously rejected by the Conservative hard right) and a confirmatory referendum (demanded by the Labour Party conference, back by around three-quarters of all Labour Party members and much of the shadow cabinet; but quietly opposed by Corbyn, a lifelong Eurosceptic).

The DWA is not going to change, and neither is the ruling of Speaker John Bercow disallowing another vote on the DWA – unless it is on a substantially different motion.

What if the cross-party talks fail?
Theresa May is on record as wishing to allow indicative votes in the House of Commons to take place and to abide by the decision of the House if the Labour Party agreed to be bound as well. Two previous attempts at generating consensus within the House of Commons failed to rally an affirmative majority of the House behind a clear solution. The Speaker is likely to whittle down any options to the ones most likely to command majority support in the House – these will likely include a confirmatory referendum, a customs union or some permutation of EEA membership.

What if MPs fail to find a way out?
If MPs have failed to ratify the DWA and endorse an alternative plan, frustration with the Brexit paralysis may play a major factor in the European Parliament elections in May. Minor parties (like the Liberal Democrats and Change UK (two strong pro-Remain parties), the single-issue Brexit Party, the United Kingdom Independence Party (two decidedly pro-Leave parties) stand to gain from the chaos in the two major parties. The results of the EP elections could unleash a dynamic of their own, also depending on turnout for what is typically a second-order national election.

What about a general election?
While a general election can be quickly organized, the small matter of the Fixed-Term Parliaments Act 2011 requires one of two routes to be taken: either a parliamentary vote of no-confidence winning or a two-thirds majority of all seats in the House of Commons voting in favour of early elections. In its current state, the Conservative Party has no interest fighting an election so soon after the EP election or the last general election, which took place in June 2017. For Theresa May to lose a parliamentary vote of no-confidence would require several Conservative MPs to vote against their own Prime Minister – an unprecedented breach of political protocol that would require these MPs being expelled from the party or being forced to resign their Conservative Party membership.

At this stage, it is doubtful whether a general election would genuinely change much. Labour is running on a very ambivalent policy on Brexit that is attempting to reconcile its largely pro-Remain electorate, MPs and shadow cabinet) with the pro-Leave tendencies of some Labour constituencies in northern England, as well as Corbyn and his inner circle. This is a balancing act that has to end soon, and a general election would only accelerate that process away from strategic ambiguity.

Will there be a second national referendum?
The extension gives the United Kingdom six and a half months to deal with its future plans, once and for all. If the DWA cannot be passed, and if Parliament appears unable to act, possibly paired with a strong result for pro-Remain parties in the European Parliament election, this could change the dynamics favouring a second national referendum. Besides the public mood slowly shifting towards a Remain majority, proponents of a second national referendum (confronted with an erroneous narrative of supposed betrayal by Leave supporters) now have a new weapon in their rhetorical arsenal. That said, the push towards a second national referendum needs a popular public face, as well as the will to sustain the momentum towards passage of the necessary legislation to enact a second referendum, whether as  a means to confirm a final settlement between the UK and the EU; or a standalone plebiscite aimed at resolving the Brexit issue once and for all. See here for a potential way to make it happen.

So now, Halloween is the new target date towards withdrawal. Whether the final outcome will be a trick or a treat very much depends on the actions of elected officials and the public alike in the days and weeks ahead. Place your bets, ladies and gentlemen – this is not over yet.

 Image by Flickr - Mutualité Française

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