Theresa May had the cheek to push the Brexit calendar back a full two weeks plus, on the “Are you kidding?” excuse that she could wrest concessions from the EU on the Irish backstop. The Europeans had said in as many ways that they could that there would be no more negotiations on the Withdrawal Agreement and some MPs had actually been paying attention. Thus the initial expectation was that May’s report to Parliament on February 13 would be followed by a Valentine’s Day massacre. But Parliament continues to be all bark, no bite.
The Government will table an anodyne amendable motion that calls for Parliament to acknowledge that they know about May’s doomed-to-fail strategy and approve of her carrying on. One expected amendment by Labour, is to force the repeatedly-delayed “meaningful vote” on the Withdrawal Agreement to be held on February 27, a day after May is set to report back after her next chats with Brussels. 1
However, the more significant issue is that the Government’s motion seeks to acknowledges both of the two motions passed by Parliament last January. They were:
To require that the Northern Ireland backstop be “replaced with alternative arrangements to avoid a hard border” while supporting the notion of leaving the EU with a deal and therefore supporting the Withdrawal Agreement subject to this change.
To reject the UK leaving the European Union “without a Withdrawal Agreement and a Framework for the Future Relationship
The second motion was the weakest form of the “prevent a no deal Brexit” motions and the only one to pass. Only the first, on the backstop, had Government support.
However, the Ultras have said they will not support tomorrow’s Government’s motion if it rules out a no-deal Brexit.
ERG members are meeting with chief whip Julian Smith now to amend the Brexit motion tomorrow. They cannot guarantee support if it is not changed.
— Arj Singh (@singharj) February 13, 2019
Mind you, since these are all non-binding motions, the real world impact is limited. It would simply be yet another on a long list of Theresa May embarrassments. But this could have more significance in the intermediate term that it would appear.
If May backs down and removes her “no deal” language, that would say she’s quite concerned about the support of the Ultras.
Similarly, if she keeps the language in, this will be a small but telling test of the will of the Ultras and their numbers. Any conservatives who claim to embrace a no deal Brexit as a possible (or even desirable) outcome but won’t even take a very low cost stand are poseurs. So this would give an initial reading on how many Conservatives are willing to stand up and be counted as ERG stalwarts. This vote would thus set a likely upper bound on the number who’d be willing to back legislative moves that would jam the controls and force a crashout.
Another noteworthy development: the People’s Vote campaign has lost steam. On Twitter, it disavowed a proposed amendment by Labour’s Geraint Davies for a second referendum, admitting they’d lose the vote until “every Brexit option has been exhausted.”
On a separate topic, Theresa May is clearly running down the clock, and the press has been reporting on how where preparation is visibly falling short, such as on securing trade deals in the place of ones that go “poof” as of Brexit. From Richard North:
We have often pointed out that UK trade relations via the EU are not managed entirely through registered Free Trade Agreements. We also rely on a network of trade-related agreements which are not registered with the WTO and therefore do not qualify as FTAs.
Nonetheless, these are vital to the conduct of our trade and, when I last counted, we were the beneficiaries of 881 bilateral treaties between the EU and third countries, together with 259 multilateral agreements.
Now, with a no-deal Brexit beginning to look a real possibility, we need to be looking hard at these agreements. Even if we stick just to the FTAs, it seems we have something of a problem. According to The Sun, it appears that we have something like 70 FTAs that need renegotiation to cope with a no-deal, with the government promising to conclude 40 of them by Brexit day.
As it turns out though, the likely number that will be concluded is a mere six. Four have already been agreed: Switzerland – signed on Monday – Chile, an Eastern and Southern African block, and the Faroe Islands. Two more, deals with Israel and the Palestinian Authority are “on track”.
The Government has taken steps to allow it to push through a great deal of Brexit-related legislation in haste, but the process isn’t fool proof. From the Institute for Government:
Parliament has a key role in preparing for a no deal Brexit. The Government needs to pass new legislation – both primary and secondary – to establish new policy regimes in key policy areas such as agriculture and fisheries after the UK leaves the EU. There are still six pieces of primary legislation, nearly 500 more statutory instruments, as well as international treaties for Parliament to scrutinise.
All that with just 30 scheduled sitting days in Parliament remaining before 29 March (from 8 February)….
While there is an eerie silence in the main chamber, Parliament is still grinding away on Brexit. In the committee corridors, work is being done to deal with other gaps which need to be addressed by exit day. For example, delegated legislation committees in the Commons have been meeting to pass Brexit statutory instruments (secondary legislation) – 13 were held this week.
In the Lords, peers have also been approving statutory instruments, and the EU Select Committee has begun to scrutinise around 20 international treaties that the Government has already signed. Ministers have said around 80 are needed by exit day and some – although not all – will need to be laid before Parliament under the Constitutional Reform and Governance Act (CRAG) 21 sitting days ahead of ratification….
Normal legislative deadlines for a 29 March exit are approaching
Despite the extra days, the scale of the task still remains huge. Although around 400 statutory instruments have been tabled, only 119 have actually passed, so nearly 500 still need to enter into law. Roughly half of the total need to go through delegated legislation committees (under affirmative procedure), requiring ministerial time and willing MPs.
The other half of the statutory instruments have been tabled under the negative procedure, used in non-controversial cases. MPs and peers have 40 days to vote to ‘annul’ them, and the Government by convention usually leaves at least 21 before bringing them into force to allow parliamentary scrutiny. If the UK wants these statutory instruments to be in place for 29 March, the latest sitting day they can be laid is need to be laid is 7 March.
But the Government has equipped itself with powers to get around those deadlines
Under the EU Withdrawal Act, in “urgent deficiencies cases” ministers can pass affirmative statutory instruments immediately. Both Houses would have 28 calendar days to approve an instrument passed in this way after they have entered into law (assuming Parliament sits as usual) otherwise it would cease to apply.
This could prove risky with a hostile Parliament: if they were voted down, it could lead to a legal gap further down the line. The Government could also choose to set aside the 40-day waiting period for negative statutory instruments if it felt that time was of the essence, but this would also likely annoy MPs already frustrated by how late in the day Brexit legislation is being passed.
Treaties, meanwhile, will need to be laid by 20 February to give Parliament its 21-day period. CRAG allows the Government to avoid the 21 sitting days in “exceptional cases”, but ministers have so far told select committees they will not use that power. A U-turn will further undermine the already strained trust between the Government and Parliament.
While time is running out between now and 29 March, there are ways that the Government can navigate a way through the immediate deadlines that it faces. The cost, however, could be an erosion of any remaining goodwill in Parliament.
Reading this is enough to induce a headache. And I am reminded of the saying attributed to Yogi Berra, “In theory there is no difference between theory and practice. In practice there is.”
1 Here is a full list of the amendments tabled so far. The Speaker John Bercow will decide which will be considered. I hate relying on BrexitCentral for this:
From the Labour frontbench: To require the Government by 27th February to either put a deal to a vote in the Commons or table another amendable motion allowing Parliament to vote on how to proceed
From the Lib Dems: To extend the Article 50 period to allow for a second referendum with the option of remaining in the EU
From Tory MP Kenneth Clarke and others: To allow MPs to vote for their preferred Brexit outcome in a secret ballot where they would rank options in order of preference under the alternative vote system
From the SNP’s Angus MacNeil: Calling on the Government to revoke its Article 50 letter informing the EU of Britain’s intention to leave and therefore stop the Brexit process
From Tory MP Anna Soubry and others: Demanding that the Government publish its most recent official briefing on the implications of a no-deal Brexit for business and trade
From Tory MP Sarah Wollaston and others: To put a series of Brexit options to a Commons vote on 26th February, followed by a referendum in the event of MPs approving none of them or more than one of them
From Plaid Cyrmu: To seek an extension of the Article 50 period in order to hold a referendum
From Labour MP Geraint Davies and others: To seek an extension of the Article 50 period to allow time to strike a deal involving close alignment with the EU and then put it sot a referendum
From the SNP: To seek an extension to the Article 50 period of at least three months
From Labour MP Roger Godsiff: Calling for an extension of the Article 50 period to allow for a second referendum held under the alternative vote system with three options of leaving with a deal, leaving without a deal or remaining in the EU