Due to the considerable amount of political thrashing around on Brexit, we’ll attempt to keep this post to a few potentially important items. I hope readers will as usual pipe up in comments with reactions and additional sightings.
The most disheartening aspect is that the UK press and pols seem to be as clueless as the Tories have been and continue to be from the outset of the Brexit process. They appear unwilling to accept that the UK has had very little bargaining leverage, and the fact that the EU is governed by treaties also limits how much latitude it has.
Just as it proved difficult to dislodge the Government’s fantasy that the UK would get a “special, bespoke, close” deal that would let it have “frictionless trade” with few obligations, so too are those who oppose the deal coming up with either remedies or ways out that are delusional. For instance, former Brexit minister David Davis wrote on Monday:
It does not have to be like this. What we need now is leadership and the courage and confidence to deliver for the UK. We can deliver an honest and clean Brexit, leaving all the possibilities such as global free trade deals open for bright future. If we need to leave with no deal and negotiate a free trade agreement during the transition period, so be it. Let’s be clear and honest and tell the EU that’s what we are prepared to do.
Um, if there’s no deal, there’s no transition period.
A related vein from Tories is that they are pushing May to improve the terms of the deal, when Barnier is striving to treat the “draft” agreement as settled. Barnier is already having trouble containing demands from the EU side. From the Financial Times:
France is leading a push for uncompromising EU declarations to accompany any Brexit deal with Theresa May, raising demands that would further complicate the UK prime minister’s efforts to win Westminster’s backing for the withdrawal agreement…
The EU statements, known as side declarations, are commonly used by the bloc in difficult negotiations. While they are outside any formal agreement, their aim is to manage expectations by clarifying the EU’s internal interpretation of any deal…
In a sign of the obstacles facing Mrs May, who needs to push through the eventual deal through a deeply sceptical House of Commons, France and Spain are championing the idea of separate EU statements, according to several diplomats from the bloc. These would set out the EU bloc’s red lines more clearly than in the formal political declaration.
The hot topics are fishing rights. “level playing field,” provisions, and Gibraltar, where what was depicted as a deal between Spain and the UK fell apart. Spain now wants a formal commitment that the Withdrawal Agreement does not “prejudge” Gibraltar’s position.
Another can of worms has been opened by the Government’s procedural loss on the question of amendments. MPs will be able to propose and vote on amendments to the withdrawal bill. We expect at least two to be debated seriously and to have the potential to be passed. One is to condition approval on a second referendum, the other is the so-far not clearly defined Kier Starmer “no no deal” scheme.
Quite a few people who should know better are pushing for a second referendum. As we’ve described, there’s no way for it to be completed before the March 29 drop dead date and the EU has never indicated any willingness to postpone Brexit to allow for one. Clive saw way too much of this sort of thing over the weekend:
I’ve been watching the Sunday political slots right across the MSM this morning. Honestly you would have not believed there could be such an outpouring of gibberish. Just be glad you’re not here, that’s all I’ll say. The entire political establishment is going on one, giant, collaborative, unicorn hunt.
I could supply link after link of this, what I can only describe as the madness of crowds, but televised.
I’ll settle for this little peach from Conservative ultra-pro-EU grandee Michael Heseltine.
He saves his best words ‘til last:
The government now faces uncomfortable choices. There is no rational argument that sees the Brexit deal passing through the Commons. Every day that it takes the government to recognise this increases the risk of no deal. I do not believe that the Commons will allow this devastating consequence to arise. Two things have to happen. A cross-party alliance has to vote for an alternative option – the most obvious is to put the issue back to the British people in a second referendum. The Europeans have to agree – and I think they would – to move the March 2019 deadline to allow time for this.
No, luvvie, they don’t. And they won’t.
Then only positive I can draw is that it has finally been exposed how the entire U.K. political elite (both in the various parties and the credentialed access-journalism media) for Leave and Remain have not got the faintest idea how the EU works and how the U.K. can — and can’t — interact with it. The Remain ultras are showing themselves to be every bit as bad as the Leave ultras.
There’s enough cakeism to fill the next five seasons of the Great British Bake Off.
Similarly, if someone has figured out what Labour’s shadow Brexit minister Kier Starmer is cooking up, please clue me in. I can’t make sense of this Guardian report:
Labour is planning to force a Commons vote within weeks that would make it impossible for Britain to crash out of the European Union without a deal, as fears grow about a disastrous hard Brexit if parliament rejects Theresa May’s agreement.
Keir Starmer, the shadow Brexit secretary, is working on plans to amend key elements of Brexit legislation that still have to pass through the Commons, in order to prevent parliament ever approving the option….
Starmer told the Observer that Labour would make sure parliament offered a legislative route to make “no deal” impossible. “If the prime minister’s deal is rejected – and that’s looking increasingly likely – parliament will not just sit back and allow her to proceed with no deal,” he said.
“There are plenty of Conservative MPs who have come up to me to say that they will not countenance the UK crashing out of the EU without an agreement. There is a clear majority in parliament against no deal, and Labour will work across the Commons to prevent no deal. On the government’s own analysis, over 50 changes to legislation would be needed for a no-deal outcome, so there will be no shortage of opportunities to pass binding votes on this issue.”
Huh? The UK can diddle with its legislation all it wants. Unless it rescinds its Article 50 notice, it will crash out without a Withdrawal Agreement.
What does it take to do that? Clive had a stab at that too:
The EU will require the revocation instruction to be made “in line with the constitutional requirements of the Member State” (or some such wording).What, exactly, will those constitutional requirements be?Either:
- The UK government alone can simply say (e.g. via a Cabinet decision) it want to issue the revocation — it won’t need a parliamentary vote to do so and can make the notification via executive action (equivalent) — the UK Prime Minister make the notification to the Council.Or:
- Parliamentary approval is requiredI would say it’s more likely to be the former than the latter, but ultimately it’ll go to the UKSC to make a ruling, if the UK government does decide it won’t need to go via Parliament.So that’s all fine, then isn’t it?No. There’s still the small matter of the legally binding fixed leaving date which was added to the EU Withdrawal Bill https://www.parliament.uk/documents/commons-public-bill-office/2017-19/compared-bills/EU-(Withdrawal)-Bill-tracked-changes-since-introduction.pdf with the hard-coded “exit day” or 29th March 2019.This must be repealed regardless of whether the EU decides to (is forced to) accept the revocation for the triggering of A50 following the (as were are assuming for the purposes of this exercise) Opinion permitting this action being given by the CJEU.Recall that the UK leaving the EU is a two-sided process. The UK can legally leave the EU and the EU is powerless to stop it. The EU can determine that, following the provisions in A50, a Member State has legally left the EU and the UK is powerless to stop it. In order to halt leaving altogether, both “limbs” of any revocation of A50 must be in place. The EU must have had its legal position changed (by the new, assumed, mechanism which the CJEU Opinion might enable) and the UK must have had its legal position changed (by repealing the 2018 EU (Withdrawal) Bill).Failure to have both “limbs” in place will, using the most polite language about it, not result in legal certainty. The EU could still, legally, have to regard the UK as being a Member State (as it considers A50 rescinded and the UK having re-acceded — or alternately not left at all, I won’t split the hair on that one) but the UK, with that pesky 2018 EU (Withdrawal) Bill still UK law, would consider itself to have left.
Another issue is that the EU will simply reject any amendments; that is certainly Barnier’s body language. So what happens if a referendum amendment or Starmer’s clever add-ons get nixed by the EU? Or if the Government gets them stripped out on that basis? Again a take from Clive:
It’ll all be down to amendments. Here it would need a constitutional layer to give an accurate opinion because UK legislation and parliamentary procedures are very obtuse. But I think there’s real doubt that the clerk to the commons would accept an amendment which says, in effect, you have to have a referendum on this bill becoming law. Parliamentary procedures are designed to stop an amendment which creates a condition that might not happen (such as the UK government having to both bring forward new primary legislation, which might not get passed – such as a referendum – and then that referendum concluding in a way which supports the bill being voted on) being attached to a bill. Parliament can only conclude a bill in a way which creates legal certainty. In effect, a bill can only be passed if, as a result of that bill, the courts can look at that bill and say, without any ambiguity “this is the law, this is what the law says”. You couldn’t have the Withdrawal Agreement pass through Parliament – whereupon it becomes law – but then have everyone (including the courts, both UK domestic and others such as the CJEU) have to then say to themselves “ah, well, maybe not, we’ll have to wait for the referendum result, whenever that is, whatever questions are on it, to know what the UK’s legal position in in respect of the EU”. I imagine the UK government’s chief whips office is going through all this now. Just because Parliament is sovereign, it doesn’t mean it can act like a constitutional equivalent of a drunk in a bar.
But even if the Government is legally correct to nix these amendments, can you imagine the backlash? The press is treating all sorts of barmy ideas as serious, and if May refuses to let them be heard, the MPs will take it out against the bill (as in vote it down clean) and against her (Labour has threatened a vote of no confidence if the bill fails to pass; it takes a higher number of votes to pass if the motion of no confidence does not come from the ruling party).
To make things more fun, Nicola Sturgeon is working against May’s deal, but with the same bad ideas that are circulating. From Politico:
Pro-EU Conservative MPs can be part of a cross-party “coalition” against Theresa May’s Brexit deal, and against a no-deal exit, Scotland’s First Minister Nicola Sturgeon said Tuesday.
Sturgeon was speaking in Westminster following talks with Jeremy Corbyn, leader of the U.K.’s opposition Labour party. Sturgeon, whose Scottish National Party is the third largest party in the House of Commons, said those opposed to the binary choice of May’s deal or no deal should unite behind a single alternative strategy — and that Conservative MPs “have a role to play” in the interests of “building a coalition” in Westminster.
“The next stage of these discussions has to then look at what option can the opposition coalesce around,” Sturgeon said, adding that options included a second referendum, a permanent customs union and single market arrangement.
And the Ultras are looking like yesterday’s news, having not made good on their threat of a vote of no confidence. However, at least for some of them, the failure to send in the required letters may instead have been because they knew they’d lose, which would mean May could not be challenged for another year. The more opportune time would be if/when the Brexit bill fails to pass. So then we’ll see if the Ultras were all bark, no bite, or if they managed to muster a tiny bit of discipline when it mattered.