With Brexit barely more than a month away, May has made her latest move, which is to drive Parliament’s vote as close to the wire as possible, while refusing to consider revoking the Article 50 notice, or its more socially acceptable cousin, a second referendum.1 May has moved Parliament’s “meaningful vote” back yet again, now to 12, a mere 17 days before Brexit.
This is consistent with Lambert’s Thesis of Brexit, which is a corollary of “Everything is like CalPERS.”. It is: “At every juncture, the UK has made the worst possible decision.” Readers are welcome to debate in comments; perhaps we’ll elevate it to a Rule of Brexit. But the immediate implication is that this gambit increases the risk of a crash-out, which was already dangerously high. Even before this stunt, the normally measured Michel Barnier put the odds at over 50%.
May’s decision to outrage Parliament yet again by having no shame about playing brinksmanship could lead to more party defections and Cabinet resignations, but as we’ll discuss below, it is unlikely to derail May’s plans. As Richard North put it:
Thus, MPs can continue to behave like sulky teenagers, or wind themselves up into an almighty strop and start instructing Mrs May to take certain actions. But in the final analysis, the MPs will discover that their much-vaunted “sovereignty” does not reach outside their building. As the Queen’s first minister in what is a constitutional monarchy, the prime minister can sit on her hands and do exactly nothing. And the outcome of that is that we drop out of the European Union on 29 March without a deal.
In case you need more proof, here’s a bold idea from unhappy MPs…a motion, also known as a handwave:
Brexit Delivery Group
Here is the wording of the proposed amendment by Andrew Percy and Simon Hart that seeks to secure an extension without Cooper/Boles constitutional implications
(All subject to EU saying yes, amid signs they could insist on 21 month extension) pic.twitter.com/dagfSMPDUU
— Sam Coates Times (@SamCoatesTimes) February 24, 2019
In the meantime, May is making yet another ritual trip to Brussels to talk about the Irish backstop, which is again going to get nowhere. One has to wonder if she is actually a master actress, albeit with a very narrow range, and stages these visits as theater to give a veneer of legitimacy for her kicking the can dangerously close to a lava flow.
But the problem is even if May is fully aware that she is engaging in Potemkin negotiations, she hasn’t let her counterparties in on the joke. That doesn’t endear her to them. And interpersonal dynamics matter. Recall that there was a point during the Greek bailout negotiations where EU leaders had worked into the night and talks had completely broken down, which meant a default. Hollande literally pursued people down corridors and talked them back into returning to the table.
Even though May has not admitted to it yet, under almost any scenario, she is going to have to go cap in hand to the EU Council at their next meeting on March 212-22. Even if the MPs hold their noses and approve her deal, she will still need an extension to pass legislation.
And if Parliament again rejects her deal, it appears her intent is again to seek an extension to try to beat Parliament into line or persist in her fantasy that the EU will relent. The Torygraph reports that May is considering an extension of two months if her March 12 vote fails to placate her ministers. However, May is still sticking firmly to her “no delay” line.
The “considering” appears to be a gambit to also push back MP efforts to “take back control” and divert them into passing an amendment that calls on May to seek an extension from the EU if May fails to get the votes for the Withdrawal Agreement on March 12. Notice, however, this is a path to a bill and not a bill….yet more moving parts and thus more opportunity for mishaps.
The Ultras must be over the moon with this development. The fact that there are a lot of steps required to prevent a crash-out, and May is leaving perilous little time for executing them (a mere 13 working days) leaves little room for error. And it greatly increases the odds that the ERG can jam the machinery if they feel they need to.
A vote of no confidence would assure a crash out. That’s big reason why I have yet to see anyone on Twitter calling for May to be tossed, despite the considerable unhappiness with her latest ploy. For those of you outside the UK, recall that the drill is that after a vote of on confidence, there are 14 days in which Parliament can reverse itself and vote to affirm that that it has confidence again. If that does not happen, it is 25 working days to a General Election, and then at least a week to get a new government going (the Queen’s speech and other rituals).
Clive explained by e-mail how the Government and Parliament go into hibernation upon the passage of a vote f no confidence:
From the Cabinet Office Manual https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinet-manual.pdfRestrictions on government activity2.27 While the government retains its responsibility to govern and ministers remain in charge of their departments, governments are expected by convention to observe discretion in initiating any new action of a continuing or long-term character in the period immediately preceding an election, immediately afterwards if the result is unclear, and following the loss of a vote of confidence. In all three circumstances essential business must be allowed to continue.As specified in this section:
So, as usual, not entirely clear-cut. “observe discretion” — hmm…
But extending Article 50 would seem to be a “new action of a continuing or long-term character”. So any attempt at serious changes to the entire course of Brexit should qualify for this description and therefore not be initiated.
The Manual is not a statutory document. Nevertheless, any obvious deviation from its stipulations would as a minimum be good grounds for a legal intervention. In the scenario being postulated, that’s all that matters. It wouldn’t need to be a case which is guaranteed to be winnable. It would only need to be a case where the complainant (the ERG, for example) had standing and had enough grounds to proceed to a merits hearing. For such a serious matter with such far reaching implications — and such little case law in existence — it would probably be able to go all the way to the UKSC. Thereby placing a legal hold on any executive action lasting months.
The respondent (probably the government in any such case) would have to argue whatever they were doing really was “essential business”. A very vexed proposition. To the extent any business was “essential” it would have only been made “essential” purely as a result of political processes. A court would have to consider the factual matrix — how government and Parliament had in fact arrived at the point it had arrived at would be germane.
And “Parliament is Sovereign” doesn’t really help here. This isn’t Parliament passing legislation. This would be the government (and even on an existential level, it’s arguable there then isn’t really a government) advancing legislation or exercising the Royal Prerogative.
In any kind of event such as this, “constitutional crisis” is the ERG’s friend.
May and Parliament would need to clear a lot of brushwood for the Government to seek an extension. A couple of months ago, Shadow Brexit Minister Kier Starmer claimed that there were 50 pieces of legislation that needed to be amended or rescinded to prevent a crash out. I’m in no position to verify his claim, but the Brexit date was hard coded into the Withdrawal Act, and it appears that was far from the only place. There are only 7 working days between when March 12 and when May presumably has to go grovel before the European Council. Presumably it is possible to ram amendments to 50 different bills through in six days using emergency procedures…but again, it seems extremely tight. And if May lost the vote, she’s not exactly in a great position to exercise force.
Put it another way, while in theory May could get this all done, as the great Yogi Berra allegedly said, “In theory there is no difference between theory and practice. In practice, there is.”
Rumors of the EU being willing to contemplate, or even offer a 21 month extension sound unlikely to come to fruitio. This was the subject of the lead story in the Guardian. While it has not bee picked up by other press outlets, a post by Robert Peston on Facebook indicates it does have some substance.
It is way too late in the game for out of left field ideas like this to get traction. The time would have been in the early fall when the People’s Vote campaign seemed to be on a roll.
First, that long an extension would cross what well connected reporters heretofore have uniformly depicted as an EU red line: seating UK members in the new European Parliament, which is to be seated July 1. Bear in mind there is no finesse here. If the UK is still in the EU then, its citizens have the right to representation in the European Parliament. EU officials are highly confident that any suit lodged by a UK citizen demanding representation would prevail.
As Ian Dunt explained in Politics UK (hat tip Richard Smith):
Here’s the great secret truth about the Brexit cliff edge: It’s not on March 29th. It’s actually pretty easy to extend that deadline by a few months and there is something close to consensus in Whitehall, Westminster and Brussels that we’ll have to. The real cliff edge is on July 1st, the day before the inaugural plenary session of the newly-elected European parliament.
That’s the dead zone. If you haven’t taken part in the upcoming European elections, there’s no way to extend the deadline any further. So something is becoming increasingly clear. If Labour really is committed to ruling out no-deal, if moderate Tory Cabinet ministers really mean it when they say they refuse to allow it to happen, they must support British participation. This is, by far, the most important aspect of the whole Brexit debate. And there is almost no mention of it at all….
Once you go past July 1st, something serious happens. Things get tangled up in a new bit of law, on the European parliamentary elections.
Those elections take place between the 23rd and 26th of May. Neither of the main political parties want us to take part in them. Conservatives think it means we’ll never leave the EU and that Brexit voters will be baffled by why we are still participating. Labour is terrified they will turn into a de-facto second referendum, with Remainers and Leavers congregating around options reflecting the domestic debate in Britain.
There are also European political problems with us taking part. A European Council decision last June took our 73 MEP seats, kept back a bunch of them for future enlargements, and parcelled out the remaining 27 to countries like France, Spain, Italy and others.
That decision will have been legally enacted in the domestic legislation of the countries receiving a new MEP allocation. Many countries, like Ireland, have already passed legislation distributing them around its regional constituencies. Campaigns have already kicked off. It’ll be an absolute nightmare to try and roll all that back….
Their legal advice has suggested that if an existing member state does not take part in the elections, the parliament would be illegally constituted. And that means that everything it does -the laws it passes, the election of the commissioners, even the vote for the Commission president themself – would be open to legal challenge. The whole legal status of the system would be in doubt.
No-one in Europe is prepared to accept that. So this time, extension will no longer be possible. July 1st is the disaster zone.
I don’t know what conclusions they’ve come to, but I do know there is a lot of concern in Brussels about the legalities surrounding the May elections if the UK is not unambiguously out by then.
But in that article all Dunt seems to set out is a very good reason for the EU to absolutely refuse an extension of more than 3 months. They are sick to death of Brexit, the prospect of Brexit setting of a constitutional crisis within the Parliament is too horrible for them to contemplate. They won’t risk it.
So with that as background, it’s barmy to read that Tusk and Selmayr are kicking the idea around. That may be why Politico, which is usually fast out of the box with Brussels rumors, was mum on the topic. But in fairness, Peston signals skepticism:
So the EU is working on three versions of delaying Brexit.
One, against the instincts of the EU leaders, is predicated on the notion that she secures agreement on a Brexit deal so close to the 29 March deadline that just a few weeks of extra time are required to pass associated legislation and complete technical preparations.
The second is a delay, again of a few weeks but not long enough to compel UK participation in this summer’s European parliamentary elections, would be offered to her if she (and they) believed one last heave would get a deal over the line. Again there is not massive confidence this is a credible path.
The third, thought to be favoured by the EU President Donald Tusk – though officials I’ve sounded out aren’t totally convinced – would be for a substantial 21 month delay, to allow a new European Commission and European Parliament to find their respective feet and the UK to decide what kind of Brexit or even no Brexit it really really wants.
That said European governments are, I am told, divided about whether the 21 month delay should be offered to the UK as a kind of rejuvenating sabbatical away from the Brexit furnace or as an elaborate new process with strings attached about what is negotiable and acceptable destinations.
Given the issues Dunt raised, I don’t see how a delay beyond July 1 is possible. And before I say how serious the issues potentially were, I had assumed that any extension beyond that time would come at a price to the UK. And you can’t extract a price if you are the one making an unsought offer. So this is all looking quite barmy.
Peston further claims that May faces a revolt this week. The wee problem is May keeps surviving them. Even though I confess I was stunned by the sheer brazenness of May’s latest move, and I consider myself to be jaded, and the press was in an uproar. the level of outrage I saw on Twitter was less than I expected, although that my not be a valid proxy. More from Peston:
None of this can become any kind of reality absent the UK prime minister actually asking for a delay (brief or long).
And right now she won’t get off the mantra that delay solves nothing…
I said yesterday some of her colleagues harbour a belief that tomorrow she will perform one of her habitual supertanker-sized u-turns and concede for the first time she has an open mind about a (shortish) delay to reduce the risk of a no-deal Brexit.
If she doesn’t, or if she moves towards embracing delay with inadequate conviction, Wednesday’s parliamentary vote will be an epic battle between MPs and her to force her to accept Brexit postponement as an inescapable reality – and she knows it is a battle in which she is set to be trounced.
And speaking of Politico, its report from Egypt, contra the Guardian report, had Tusk again taking a hard line with May:
The walls are closing in on Theresa May. Even in Egypt….
European Council chief Donald Tusk warned May Sunday afternoon that EU leaders will not offer concessions on the Brexit divorce agreement until she holds another vote in the House of Commons, and proves she has majority support for specific tweaks to the current Brexit deal.
Politico tried spinning Tusks’ remarks as throwing a lifeline to May, that if she could get MPs t agree to a different Brexit deal, the EU might consider that. In fairness, that could be where the 21 month rumor comes from, that Tusk’s gesture makes no sense unless there is also a possibility of getting enough time to re-do a deal.
But “tweaks” won’t begin to cut it. The EU has also been clear that the UK would need to drop one of its major red lines to move to another position on Barnier’s ladder. And it’s been clear for some time that there is no consensus in Parliament for any particular flavor of Brexit.
We’ll see how this plays, but my take is May is unwilling to remove the risk of a no-deal Brexit. First, without that, her bill is dead in the water. There is no chance it will pass unless Parliament thinks the alternative is a crash out. Second, May believes she does not have the horsepower to cross the Ultras.
Again, this is going to be a rough week. Fasten your seat belts.
1 Mind you, we’ve said for a while that the UK is past the time when it could get a sufficiently long extension so as to conduct one; we’re merely commenting on May’s strategy. Let us not forget that May is doggedly pursuing a different unicorn: that of getting the EU to revise the infamous Irish backstop.