Brexit Dithering and a Labour Push for Revocation?

Brexit is back to its usual Groundhog Day feel, if anything more so than usual.

Dominic Raab was supposed to see Barnier this week with new deal terms approved by the Cabinet. Instead, Theresa May is running to the Continent, apparently to beg for more time for the EU to get its act together and still have an EU Council session in November. I’m going to dispense with linking to press reports for the most part, since a lot of this rumor of the day stuff proves to be unreliable. However, it appears the new target date for a November session would be November 25, as opposed to the earlier November 21. But among other things, that depends on May getting agreement from her Cabinet next Monday. Insiders are trying to manage down that expectation. And the Irish government is skeptical too. From Politico:

The U.K. and the EU appeared no closer to a Brexit withdrawal agreement Thursday, with leaders and diplomats alike voicing caution that a deal is not a foregone conclusion, despite predictions in some quarters that a text could be signed off on by the British Cabinet next week….

The reticent tone was echoed in public by Irish Foreign Minister Simon Coveney and European Agriculture Commissioner Phil Hogan. Speaking in Dublin at a business event, Coveney said “an imminent breakthrough is not necessarily to be taken for granted — not by a long shot,” and urged against the belief that signoff by Theresa May’s Cabinet, if it were forthcoming, represented a guarantee of final agreement.

Hogan, speaking to Irish broadcaster RTÉ, said that new proposals from the U.K. on the Irish border would be needed in the “next few days,” or else a mooted November Brexit summit at which EU27 leaders would sign off on the withdrawal agreement may have to wait.

“I would say, if I was a betting person, we would have a December Council to discuss the final outcome and hopefully we can do a deal,” Hogan said.

Nevertheless, Donald Tusk is now the one making cheery noises on behalf of the EU, saying the EU and the UK could have an agreement in a week. However, as predicted, fishing rights have become a source of friction. From the Telegraph:

Senior EU diplomats have warned that any plan to grant the UK a temporary customs union to solve the Irish backstop problem must come with cast-iron guarantees that EU boats will be free to fish in UK waters. The EU demands threaten to re-open a fierce row inside the Tory party over the potential size of the Brexit dividend for coastal and fishing communities. Fishermen warned Mrs May that she must not “squander” the chance to claw back valuable quotas for British fleets, while MPs representing fishing communities said extending the current arrangements would be “totally unacceptable”.

And the DUP is having fits over a proposal, leaked to The Times, which has May acknowledging that the EU is pushing for Northern Ireland to remain aligned with the EU to avoid a hard border. Even though May maintains she won’t agree to that solution, the DUP is up in arms for May dignifying it by her mere mention.

I wanted to revisit something I mentioned in Links yesterday because it bears watching. Labour’s Keir Starmer declared May’s no deal Brexit talk to be a bluff. The Express reported that Starmer was set to tell EU officials that Labour would vote down a Brexit deal if it lacked “a comprehensive vision for a future relationship.” Has he not figured out the UK not being clear on what it wants and then asking for combinations of things it can’t have is the main obstacle?

The same day, Tony Blair stated that he would do everything in his power to stop Brexit.

Now this may be the bluff of the week. But if Starmer is serious, this means at least a fair contingent of the Blairite Labour MPs, who might otherwise have been expected to break with Corbyn and support a deal, any deal, to avoid a crash-out, are instead planing to play chicken to force May to send in a notice asking to revoke Article 50.

First, there are procedural UK issues that are above my pay grade. Could May as PM on her own authority take this step without a Parliamentary vote? If she needed or wanted Parliamentary approval, it would seem a month is the absolute bare minimum time for the needed motion to move through both chambers, and that assumes the Ultras do not succeed in throwing legislative sand in the gears.

But even, despite the vanishingly small odds of getting the UK Brexit supertanker to turn around, getting Article 50 undone may not be a tidy as we’ve assumed. Admittedly the EU did tons of fudging when it came to rescuing banks, but this is a treaty matter, and the EU has to think hard about exactly what precedent it wants to set. The EU should be unified in wanting to let the UK back out, but consider the lawyering that has already gone into this issue. As our Clie pointed out:

First off, anyone who claims to provide a definitive opinion is fibbing. A50 is too badly drafted to ever allow legal certainty for the Member State withdrawing. It was designed to give the EU all the flexibility and the withdrawing Member State none. Probably sounded like a good idea at the time, but… events…

Anyhow, this http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/596820/IPOL_IDA(2018)596820_EN.pdf is as close to stating the position as it is possible to get. I think this is the latest report (there have been several versions, which says a lot there)

The clincher is that withdrawal, as the triggering of A50 puts in motion, is irreversible. At least, that was the intention. However, this is currently the subject of a case before the CJEU to get an opinion as to whether or not the withdrawing Member State can simply change its mind. I doubt that will be what the will decide to CJEU hand down, but it is a possibility.

Discounting that, we’re left with what A50 says on the tin, which is that the best a vacillating Member State can get is an extension of the withdrawal period. This, A50 explicitly states, requires Council unanimity.

But (and with the EU there’s always a but) if anything the EU has been up to during the withdraw period is potentially unlawful, there’s always the possibility of a legal challenge. Here, as the EU Parliament report explores, it all gets very murky. Because it is not at all obvious that the CJEU has jurisdiction. Certainly, from what the U.K. has done already, it will on 29 March have withdrawn from the TFEU (the Treaty of Lisbon). So it’s sayonara to the CJEU as far as the U.K. is concerned. The International Court of Justice would be the presiding jurisprudence.

However… if as part of the withdrawal agreement the U.K. elected to have the CJEU as the superior court (I can’t see the Ultras going for this and it getting through the U.K. parliament, but let’s suppose for a minute) then it’s back to the CJEU again. Which would tend to favour what the Commission thought, rather than some narrow legal reading.

No simple answer, though and unfortunately all we can really do is speculate.

The reason for raising the issue about lack of clear answers is that leaves open the possibility of Ultras to cause big time trouble. Starmer and Co. should game things carefully before they play chicken with such high stakes.

Revoking Article 50
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34 comments

  1. The Rev Kev

    I have an idea of how to circle the square of time running out for negotiations on Brexit but it will sound stupid. The UK makes a request of the EU that before any final deals are made on Brexit, there should be an impartial investigation to determine whether it was Russian influence that was responsible for the success of the Brexit vote. After all, if it was the Russkies, then the whole Brexit vote would be invalid, right? If the EU agrees (what choice do they have?), the UK then states that it should have an international arbitrator to make this investigation. As such, they request that the US Justice Department detaches a special investigator to head up this investigation. They of course send over Robert Mueller. As the US investigation has fizzled out and he is just spinning his wheels, he would have a whole new investigation to start in the UK that could last years which would be time enough to finalize negotiations behind the scenes. Wouldn’t matter if he found anything or not. Sound good?

    Reply
    1. Skip Intro

      Wasn’t the Brexit referendum merely advisory? Or would Mueller investigate the ‘Russian influence’ on the MPs who voter to invoke A50?

      Reply
      1. Which is worse - bankers or terrorists

        Call a new election: for UK Prime Minister, for Irish reunification, and for Brexit. By throwing the whole thing into chaos the EU loses its advantage.

        Reply
    2. Fazal Majid

      No. The only requirement is that the notification of withdrawal be according to the exiting nation’s constitutional arrangements. Determining whether Russian interference made the Art. 50 notification constitutionally invalid is something for the UK alone to determine.

      Reply
  2. PlutoniumKun

    From the point of view of Starmer and the strong Remainers in Labour, this may seem to make some sense. It is of course possible that in the teeth of a crisis after New Year, May (or her cabinet) may find themselves desperate for a way out of the coming cliff edge. I think at this stage anything is a possibility.

    It is possible that the CJEU could decide that A.50 could be unilaterally withdrawn – although I would think this is enormously unlikely, my reading of the implicit message of the text is that its pretty clear that only the remaining EU members could make such a decision, even if it is possible. It was clearly the intention of the writers of the text that no Member could use a withdrawal notice as a negotiating tactic, which is why it was written as a one way only road.

    The problem of course is that the EU would be crazy to accept a withdrawal offer from the UK without some sort of guarantee that the UK isn’t going to become a rogue member within the EU (suppose they accepted the withdrawal and promptly May was replaced by Boris?). This would mean some sort of watertight deal as the price of playing nice. And I don’t see how it would be possible to put together this sort of deal (and get it past the respective parliamentary obstacles) in the time remaining. All it would take is one member deciding it wanted blood from the UK in exchange for a withdrawal and it would become a complete impossibility.

    Reply
    1. vlade

      There would be exactly zero chance of “a watertight deal” on the UK guarantee – for example, how would you define what a rogue EU memeber is?

      At the same time, the EU has repeatedly, vey publicly said “UK can change its mind till the last moment” (although recently there were noises of how it would have to give up rebates and the like), it’d be really hard for them to back out and not to find some way to do so – like to do a majority vote to give it some veneer of legality.

      TBH, if ultras went to CJEU on this, after the Brexit was cancelled, I’m pretty sure that it would be unlikely to get rescinded – as long as none of the EU states at the time lodged objections. I.e. if the Comissions agreed with it, Council, and if it could get a EP vote as well, then it would be very hard to rescind it as while it does not explicitly permit it, it does not explicitly forbid it, and it would be clearly the will of the EU to do so.

      CJEU forcibly kicking the UK out of the EU against expressed votes of the EU would go down like a lead baloon not just in the UK.

      Reply
      1. Frenchguy

        Agree, if the UK asks for it, the EU would allow them to cancel Brexit. They would ask for a strong commitment though, best would be a referendum (with article 50 extended as long as needed), second best would be a clear vote in Parliament. When I say clear, I mean I could see the EU refusing to cancel article 50 if the vote in Parliament is a short majority (after all, it doesn’t mind telling people to vote again, as for Parliaments…). In other words, the Tories would need to publically dump the Brexiteers.

        And agree also that the CJEU cancelling the cancelling is a fantasy (though a funny one). It’s not because continental law is strict with the letter of the law that judges are dumb. I am not even sure that someone would have standing to sue.

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      2. PlutoniumKun

        Yes, I think the big players (and Ireland) would be happy to just rescind, with the one condition that this isn’t just a respite for a few months and it all starts again. But its the smaller players who might be very annoyed if the UK got to keep its rebate and other little advantages.

        As you say, while the CJEU is independent, its highly unlikely to make a judgement that is clearly at odds with the majority opinion of the leaders on an issue like this.

        Reply
        1. vlade

          Yes, if it was “it’s just a timeout”, I’d think that the UK would find very quickly that the EU would prefer a no-deal (for this generation) to a “make fools of us” sheninegans.

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    2. Fazal Majid

      The UK has always been rogue member of the EU, even when sane politicians like Thatcher, Major or (debatably) Blair were in charge. Unfortunately Brexit won’t change this because Italy, Poland, Hungary, Slovakia and Austria have also become rogue members.

      Reply
  3. TobiasI.

    One thing I have been wondering about, is how the pet peeves of various EU-countries will be dealt with given, that there is hardly any time left.
    Whilst Mrs. May has not made any inroads trying to pit Barnier against EU countries/governments, any deal will have to be passed unanimously at some point, there are still bilateral questions such as Gibralta(Spain) and the Eligin Marbles(Greece), which will have to be dealt with and I don´t see the respective governments not using the leverage they have in the current situation.
    Will Mays government just fold on all these bilateral demands? And how would that play in the Britain?

    Reply
    1. PlutoniumKun

      I don’t know the answer to that question, but the EU has been working very hard to make sure this doesn’t happen (with the exception of Ireland, which has its special circumstances). The problem is that once one country pipes up with its particular issue, the others will quickly join the parade. The only hope the negotiators will have is that nobody will want to be seen as a deal wrecker.

      Reply
    2. vlade

      A50 extension has to be unanimous. Deal needs qualified majority.

      The interesting point would be if A50 was to be rescinded. That’s where opposition from a few EU countries might cause trouble.

      Reply
    3. Yves Smith Post author

      Apparently Gibraltar has been settled:

      https://www.independent.co.uk/news/world/europe/gibraltar-brexit-talks-uk-spain-eu-pedro-sanchez-cyprus-a8591471.html

      The issue for any smaller country now making a stink is whether it perceives it won’t lose much from a crashout and can thus afford to make a stink.

      I think there’s a risk of Italy using the budget to hold the deal up, that it won’t vote for an extension unless it gets its waiver on deficit spending

      Reply
  4. Susan the other

    Achilles’ heel. I guess I just don’t get it… but the EU looks to be nothing more than a glorified trade treaty that has no basis in sovereignty – neither the EU as a whole nor the member states – and it is almost as tho’ the whole “EU Constitution” is a puff piece. No express laws for revoking A50; no express laws for anything? Whatever obscure little right is not expressly given can be assumed not to be allowed?? and must be deliberated on a case by case basis? This isn’t a real constitution. It’s the outline of a customs and trade agreement joined by contiguous states who have given up their sovereignty to form a block and use a single currency which is so rigid it isn’t even a currency – it is a stumbling block of resistance. The whole thing hangs on the satisfaction of its member states – none of whom are satisfied – but somehow there is a strict interpretation of the EU’s right to exist and dictate legal decisions so as to prevent frivolity. Funny.

    Reply
    1. disillusionized

      You must be new to constitutional law if you think most of them are clear on absolutely everything, in general constitutions are as unclear on as many topics as possible to achieve the maximum of buyin, with the understanding that most questions wont be addressed until later when it’s some other politicians problem – see slavery in the US constitution.
      In any case, article 50 wasn’t written to be used, it was written as a safety valve.

      Reply
      1. Fazal Majid

        Not to mention the UK itself has managed to get along without a written constitution. The EU is legally just as sound as the US, it just doesn’t have two centuries of practice (and a Civil War) buttressing it yet.

        Reply
  5. PlutoniumKun

    Boris’s brother has just joined the fray:

    Jo Johnson Quits as Minister over Theresa May’s Brexit Plan

    He said the public were being offered “an agreement that will leave our country economically weakened, with no say in the EU rules it must follow and years of uncertainty for business” or a no-deal Brexit “that I know as a transport minister will inflict untold damage on our nation”.

    “To present the nation with a choice between two deeply unattractive outcomes, vassalage and chaos, is a failure of British statecraft on a scale unseen since the Suez crisis.”

    He added: “On this most crucial of questions, I believe it is entirely right to go back to the people and ask them to confirm their decision to leave the EU and, if they choose to do that, to give them the final say on whether we leave with the prime minister’s deal or without it.

    “To do anything less will do grave damage to our democracy.”

    Johnson said his objections to the deal were different to those of his brother, Boris, who stepped down as foreign secretary in July saying that he could not support May’s Chequers strategy.

    I know next to nothing about the ‘other’ Johnson, but reading between the lines here I wonder if there is a cross-party plot under way to push for an A.50 withdrawal on the grounds that everything is deadlocked. I wonder if the EU would accept this pending a new referendum.

    Reply
    1. Yves Smith Post author

      The EU has never said it would pause the article 50 process for a referendum. It has said it would let the UK out entirely and it would pause it if there were a change in government.

      A referendum might not produce a different result. Look at how May caused a general election because she though she’d deliver a historical defeat to Labour and the press at the time agreed, treating her ploy as a masterstroke. The EU will know the results of a second referendum are not guaranteed.

      So I have no idea. Merkel who is cautious probably would back it, but Macron? And companies would be super upset at the prospect of more uncertainty.

      Reply
      1. PlutoniumKun

        Yes, if the EU did agree to a withdrawal on the basis of, say, a binding referendum in a years time, that would be a high risk strategy. It would greatly prolong the disruption, but I wonder if the EU would consider it worthwhile simply on the basis that they have enough on their plates at the moment and they’d like to at least postpone the pain. Certainly, Merkel will always postpone a decision if at all possible, but of course she is on her way out.

        I wouldn’t put it past someone like Blair to be working away in the background encouraging this idea, while thinking he can finesse it past EU leaders if it succeeds. By any standards though, its a long shot.

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    2. Northern Umbrella

      Jo (Joseph) Johnson is the little brother, he is the less famous one, and is considered the quieter, more serious one. But whatever, I think he has called this one right. I know the imminent demise of Theresa May has been called many times, but if this provokes many more Tory remainers to break cover, then how can she survive?

      The options left are: The May Deal aka UK in permanent vassalage to EU (should a deal ever be struck); crash out; remain. My guess is that the current level of support in the country for those three options are 10/35/55.

      The non-voters who came out in droves for leave in 2016 won’t come out again – that’s a social problem for the UK, but it won’t affect the result. (When Tommy Robinson brings his troops out on the streets to
      challenge the vote, they will number about 50 – and they won’t have guns, UK isn’t the USA).

      Obviously the EU could choose to say “UK in permanent vassalage to us suits us best, so you can’t have an Article 50 extension to hold a referendum followed by an Article 50 revocation.” They might say that, they might not – why don’t we go and ask? Keir Starmer would do well to request some public assurances on the matter. Some countries might want it to cost UK to change its mind like this, well – pay the price.

      There’s a death cult tendency among some of the UK commenters on this site to want this to be the thing that finally sinks the UK. They’re mostly old guys. Young people want a future.

      And for the first person to come back with, you can’t have a three-way referendum, well yes you can: the Scottish devolution referendum of 1999. Two ballot papers – Q1: May Deal Yes or No. Q2: If No>50% on Q1, then Q2: Crash out, or Remain?

      That’s the only referendum structure that can resolve the dispute in UK on this issue fair & square. But Q1 might not be needed, because far from clear May will ever get to a deal to offer up.

      Reply
      1. Fazal Majid

        It’s very hard to be louder or less serious than Boris Johnson. Their father, a former MEP, was also for Remain.

        Reply
  6. Mattski

    What it says on the tin; lovely expression, redolent of the Downing Street environment in which all these last little defenestrations of (ye olde) empire–replete with tufts of blue-hair and clouds of dandruff–are taking place. (These people are about as hard to like or summon the requisite compassion for as any I have encountered.)

    Just want to say that as an outside observer these exchanges have been among the most educational I have encountered–any issue–in several decades on the internets. Taking in, as they do, the entire economic workings of a complex late-capitalist (etc.) society in its doings with the rest of the planet I have to agree that they do help rehearse us in the Great Unraveling now underway. Thanks to all.

    Reply
  7. disillusionized

    In regards to May revoking article 50, my understanding is that she could do this with the royal prerogative so no need for a vote – this would be like MIller, but invoking article 50 would remove rights guaranteed by parliament (a no no in UK ‘constitutional’ law) whereas revoking the article 50 notice wouldn’t.
    That being said, the problem is that the EU withdrawal bill specified an exit date, which means that this bill would have to be repealed.

    Reply
  8. Sparkling

    So the European Union and its fans assumed that every country would be so happy with them that they would never want to leave? That is a staggering lack of foresight.

    Reply
    1. Anonymous2

      Um. No. Why do you suppose Article 50 was drafted?

      The English have been brainwashed by 30 years of propaganda so can hardly be regarded as functioning, independent thinking adults.

      Reply
      1. Sparkling

        “A50 is too badly drafted to ever allow legal certainty for the Member State withdrawing.” Yes, the enlightened centrists aka “the adults in the room” were definitely being serious about it.

        Was a Germanic country getting brainwashed into causing problems for the rest of Europe an unforeseeable event? Really?

        Reply
        1. Anonymous2

          I think you expect too much of politicians and bureaucrats. They don’t have 20/20 foresight and nor do we. Look at the amendments to the US constitution.

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        1. Sparkling

          It was drafted by a Scot. As Anonymous2 pointed out, this is a question of English nationalism. Good article however.

          “I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country’s membership. I thought that at that point the dictator in question might be so cross that he’d say ‘right, I’m off’ and it would be good to have a procedure under which he could leave.” The End of History rears its head again– liberal capitalism is the only system that makes any sense, the only people who don’t like it are crazy dictators, There Is No Alternative, etc.

          Reply

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