Brexit Briefing No. 86: A Brave New Europe? (Week Beginning 27th May 2019).

This article was kindly given to the SSCA by Daniel Dalton (daniel.dalton@europarl.europa.eu).

Attention this week turned to the future, or at least the immediate future.

In London, the resignation of British Prime Minister Theresa May sparked the opening salvos of a leadership campaign which will not only provide the next leader of the Conservative Party, but also the next British Prime Minister.

Meanwhile in Brussels, leadership campaigns were also underway for the top jobs in the European institutions. The aftermath of the European elections, which saw significant gains for Euro critical parties, and a severe reduction in the number of seats for the two largest groups, will complicate the upcoming battles.

To London first, and the Prime Minister’s resignation means that a new leader will take over the final stages of the Brexit negotiations. Herein lies the problem with the unfolding leadership campaign, which will highlight the divergence between the UK and the EU in terms of where we are in the negotiations.

To Brussels the negotiations have already been concluded and the only thing left is for the British political class to get behind the agreement. However, In the UK it is clear to all sides of the political divide that the agreement can never be accepted and is therefore dead. Trying a fourth time to get the deal through is what brought down the Prime Minister in the end.

With this febrile environment as the backdrop, the new Prime Minister will be chosen by the membership of the Conservative Party and there is no doubt of the mood in the party, which was clearly highlighted in the European elections this week.

The Party membership will almost certainly only elect a candidate who is prepared to renegotiate the agreement and possibly one who commits to a no deal Brexit if the EU refuses to play ball, preferably on the 31st October this year.

Already several main candidates for the leadership, including Boris Johnson, Dominic Raab and Esther McVey have outlined this as their position, although other candidates have subsequently taken a different tack.

In the views of many pundits backing leaving deal or no deal on the 31st October is the only viable position any leadership hopeful can take, however it is making the same mistake that Theresa May made by raising expectations which probably cannot be met and will lay the foundations for more gridlock later in the year.

Any leader which comes to power on the back of those promises will need to deliver, or face the same fate as Theresa May.

The challenge is there is virtually no viable path that can deliver on those promises, not by October.

The EU have so far made it clear that they won’t negotiate the withdrawal agreement. That however is not a viable position when a new leader and a new government takes office. It is likely not credible for the EU to effectively say “we negotiated a deal with the previous government, which brought that government down. The new leader was elected based on their opposition to the agreement, however we want you also to accept it with no changes”.

If the EU does persist with that line, then a no deal Brexit becomes the only way to deliver on Brexit, which in turn is the only way for the Conservative Party to avoid a collapse at the general election similar to the one it suffered this week in the Euro elections.

However, to deliver a no deal Brexit, the government would inevitably need a vote in Parliament to endorse that course of action (which it won’t get in the current parliament) and to pass legislation necessary so the UK is legally prepared for such a scenario (which it also won’t be able to do).

The government could in theory bypass the first problem, if it actively does nothing then the UK would leave on the 31st October, even without parliamentary approval. However, the majority in Parliament who want to avoid this scenario would undoubtedly try every trick in the book to stop it, including bringing the government down. Such a scenario would lead to a constitutional crisis which would dwarf the current crisis.

In addition, without the relevant legislation in place a no deal Brexit would be a huge legal and political mess. The UK would be outside the EU by virtue of international law (the end of the article 50 process) but in the EU under UK domestic law, which wouldn’t have been amended. This would leave a legal vacuum which could prove advantageous to the EU which could (in theory at least) benefit from all the access to the UK that EU membership provides, whilst blocking UK companies and individuals from accessing the EU at all. The legal ramifications of such a move could be immense.

This means that despite all the rhetoric, whoever becomes the leader of the Conservative Party, they are unlikely to actually pursue a no deal Brexit as their first course of action. A general election would become likely in such circumstances to try to change the parliamentary arithmetic so that it would be sufficient to pass the necessary legislation to ensure the UK could leave without a deal (and to legitimise the decision so the government alone didn’t face the blame if it all went badly).

However, before all that, the new prime minister’s first move will be to renegotiate the withdrawal agreement, specifically to try to remove or amend the Irish backstop. Yet because of the summer break in Brussels, they are unlikely to be able to negotiate until early September at the earliest.

This is where the EU will, despite their rhetoric about not opening up the withdrawal deal, surely come to the table.

To not do so would be to precipitate either a no deal Brexit, with them blamed as the instigator, or unprecedented political instability in the UK.

Here the Commission also has a problem. Its term is due to end in the autumn, with a new Commission taking over in around November. It would be extraordinary if the Junker Commission, as their last act, bestowed a no deal Brexit on their successor and then left the scene to leave the next Commission to try to sort it out. 

It is far more likely, in these circumstances, that the EU would look for an extension beyond October, to allow the new Commission some role in shaping a Brexit agreement. On the UK side that may also be attractive, as it would allow time for a general election and for the legislation enshrining Brexit in UK law to pass if a deal can’t be delivered. Even if a new deal can be delivered, it is already becoming nigh on impossible for the legislation to be finalised by the end of October, given the leadership contest and the summer break in Brussels.

However, a new Prime Minister, who was elected on a promise to deliver Brexit on the 31st October is unlikely to find it palatable to have to ask for a further extension as one of their first acts in government.

This demonstrates the challenges with the debate in the UK. Theresa May enthused many and united Brexit voters around her with her red lines. They were designed to shore up her position in the short term but they framed the Brexit debate and expectations around those issues. That ultimately sowed the seeds for her downfall. Whoever her successor will be, they probably can’t become Prime Minister without doing the same thing and that almost certainly means a repeat of the uncertainty of March once more in October.

There is also a demonstrable lack of understanding of British politics in Brussels (and vice versa). The withdrawal agreement never stood a realistic chance of being agreed. Yet even after its first defeat, many in Brussels were convinced that the British would eventually agree to it, regardless of what it contained.

Stern announcements that the agreement was non-negotiable (which is contrary to the general practice of negotiations in Brussels) were predictably counterproductive. They will also prove to be false as the Commission will have to reopen negotiations with the new government once it is formed.

This all means that we are heading to another crunch point in the autumn.

Huge decisions will need to be made by all sides - will the EU agree to renegotiate? How will the new Commission approach the negotiations? Will the UK change its negotiating stance? How can parliamentary opposition be overcome in London? Is a general election coming, or even another referendum?

Brexit has never been boring, but after the leadership election and with a new prime minister is in place, the autumn is set to be even more eventful than the last three years.

Addendum:

As I was not re-elected in the European elections, I will soon cease to be an MEP, as the e-mail version of this briefing was linked to my role in future I will no longer be able to send out emails to the database. However, I will continue to write somewhat less frequent Brexit Briefings which I will post on my Facebook, Twitter and LinkedIn pages so please follow me on those if you wish to keep reading:

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Daniel Dalton