Brexit Briefing No.76: A Week Is A Long Time In Politics! (Week Beginning 11th March 2019).

This article has been kindly given to the SSCA by Daniel Dalton MEP, Conservative MEP for the West Midlands (daniel.dalton@europarl.europa.eu).

Harold Wilson famously said “a week was a long time in politics”. Yet even he probably couldn’t envisage how long this week would be.

Last minute flights to Alsace, late night, drama filled votes, ministerial resignations, deals struck then rejected, no deal rejections, article 50 extensions. This week had it all for those who follow politics closely, yet at the end of the week the available options for British lawmakers were more or less the same as at the start of the week. The PM’s Brexit deal, no deal or no Brexit.

The week started with a late night dash to Strasbourg for British Prime Minister Theresa May so that she could sign off a series of clarifications on the withdrawal agreement with European Commission President Jean-Claude Juncker.

The two announced a series of changes to the text surrounding the withdrawal agreement. These included a joint instrument, which reiterated that the EU does not want to keep the UK in the backstop indefinitely, underlining that both sides must act in “good faith” and with “best endeavours” to strike a future trading relationship to try to ensure that the backstop will never be used.

These statements didn’t change the substance of the withdrawal agreement, but if there is a dispute between the parties, then they will have to seek a ruling from a new arbitration panel which is laid out in the deal.

This would give the UK the hope that it could leave the backstop if the EU was not acting in good faith, but it didn’t give the UK the unilateral ability to withdraw from it. The government hoped that this would be enough to win over critics of the deal. However whilst UK Attorney General Geoffrey Cox concluded that these additions reduce the risk that the UK could be trapped in the backstop, they didn’t rule it out and therefore he didn’t change his legal advice that the UK could be kept inside the backstop indefinitely.

As a result the second meaningful vote on the deal, with these additions, was again rejected. This time by 149 votes. Whilst this was a narrower defeat for the government than the first rejection it was still the fourth heaviest defeat a government has ever had.

As a result the parliament voted on Wednesday to rule out no deal. It was here where things started to get very messy for the government. The initial motion, proposed by the government, ruled out no deal on March 29th but stated that no deal remained the default option if a deal wasn’t agreed.

However, a cross party amendment amended that to rule out a no deal Brexit in any circumstances. It passed by 312 votes to 308. 4 government ministers abstained on that vote with permission from the government whips. That meant that the government then whipped their MPs to vote against the whole motion. However there was a much larger rebellion on that vote, including by a number of ministers. The motion was passed by 321 votes to 278.

That meant that MPs ruled out no deal in principle. However that doesn’t mean that the UK can’t still leave the EU without a deal. In fact the instability in Westminster suggests that no deal may still be a very likely possibility. The UK needs to make a request for an extension, which the EU needs to accept and the UK then needs to change the relevant legislation to alter the leaving date in domestic UK law. The question remains as to how long the extension would be, if it is a short extension until the end of June then a no deal would still be very likely then if the PM’s deal still hasn’t passed.

However the votes on Thursday night changed the balance once again as the government tabled a motion to extend article 50 (which they had to do in order to avoid no deal). The motion proposed a short extension to June if the PMs deal is passed before then and a much longer extension in order to allow parliament to find a path forward if the deal had not been approved.

There were again a number of amendments, including a key one which aimed to allow parliament to wrestle control of the Brexit process from the government. It was defeated by 304 votes to 302. All other amendments were also defeated, including one calling for a second referendum which garnered only 85 votes, demonstrating once again that there is no appetite in the Parliament for a second referendum. These votes allowed the government to get some control back over the process. However, over half the parliamentary party used the opportunity of a free vote to vote against the government policy of extending article 50. By doing so they were effectively endorsing a no deal Brexit on March 29th. As a result the government had to rely on opposition votes to get the motion approved.

This week’s shenanigans have highlighted just how difficult it is for a government without a majority to get any position through parliament. Especially on the most divisive issue to hit British politics in the post war era. 

This week’s events also mean that there is a greater likelihood that the Prime Minister’s deal could ultimately pass. She will attempt to put the vote to parliament for a third time next week but this time with renewed confidence.

Because it looks like a no deal Brexit has been blocked, many MPs who previously opposed the deal may conclude that the only way to achieve any Brexit at all is to support the deal, regardless of what is in it. If they don’t they are vulnerable to the charge that they were the ones who blocked Brexit, if, at the end of this, the UK doesn’t leave at all. The EU is likely to tighten the screw by making it clear that if the deal doesn’t pass, the UK will be offered only a long extension of article 50, possibly up to two years.

The EU may also attach a demand for a referendum on the deal, as has been repeatedly stated by several EU politicians. Despite parliament’s rejection of a referendum the government may have difficulties avoiding such a referendum if it is the EU’s price for a long extension. Especially if the extension is the only way to avoid a no deal Brexit.

Such a referendum (now that no deal has been rejected by parliament) would almost certainly only offer a choice between the PMs deal and to remain in the EU, offering for the first time a path to remain in the EU. This is something that many Conservative rebels may decide is too big a risk to take.

However as ever there are two sides to this story, a long extension may offer Brexiteers an opportunity to negotiate the EU/UK free trade during this period. That would negate the need for the backstop and could provide a path towards the free trade agreement arrangement that many Conservative rebels have always seen as the preferred outcome.

Next week the parliamentary drama will return as the Prime Minister will attempt to bring her deal back for a third vote. If she wins that vote, the UK will request an article 50 extension until June to allow the domestic UK legislation to be passed. If the vote fails again, she will almost certainly have to seek a longer extension. However the UK’s request for an extension will only happen after the votes next week, giving the European Council, which meets in Brussels next Thursday, only a day to consider their options as to how the EU will respond.

This week’s events therefore have answered no questions and just created many new ones.

The only three options available to the UK - no deal, the PMs deal and no Brexit - are all still possible despite all three being defeated in Parliament this week.

Parliament continued to signal what it didn’t want, with a variety of options all being rejected. The only thing it could muster a significant and decisive majority for was to extend article 50. Even that changes nothing as the UK was due to stay in the EU in all but name, and observe all EU rules, until the end of 2020 under the withdrawal agreement.

Psychologically, politically and in technical legal terms, Brexit may have been delayed this week, as the UK will no longer leave the EU on the 29th March. But the practical reality is that nothing has changed.

It has been clear for months that the UK wouldn’t leave on time and ironically the Article 50 extension leaves the UK in a better position with regards to EU law over the next two years. As it will obey EU law with representation and a vote in EU institutions, whereas under the transition agreement it would have to obey EU law without any representation or say over those laws.

So it was a week of high drama, but behind all the noise there were no decisive breakthroughs in the bigger Brexit debate. All options remain on the table for another week at least.

Daniel Dalton MEP