To Brexit or Not to Brexit

Vlade’s addition to the lexicon:


1. to ask repeatedly for the contradictory and unachievable, allienating and/or offending all involved. As in ‘He’s trying to brexit, asking to keep the keys to her flat after divorce” or ‘Stop brexiting with your job search and get real.’

2. to be indecisive, to dither.

In all seriousness, I had planned to write a “Let’s try to make some sense of where we are” post, but this looks to be such a chaotic day, it might be more sensible to see where things shake out first. I therefore have not been as exhaustive as I would normally be in checking the news. But let me first throw out some big issues of puzzlement:

What is playing out as a “constitutional crisis” is the result of the failure of the leading parties to operate properly. When a Prime Minister is performing badly, either his own party or Parliament is supposed to turf him out. May was deemed to about to hand over the keys to No. 10 repeatedly, starting from right after her snap election fiasco. The deep splits in both major parties over Brexit, the horrible Tory pretenders, the fact that the Tories were even less willing than usual to risk a loss in a general election because Corbyn has kept May in place way way beyond her sell-by date. Parliament, awfully late in the game, is attempting to cashier May as far as Brexit is concerned while keeping her on as Prime Minister.

I’d have included a clip from the The Three Burials of Melquiades Estrada, where Tommy Lee Jones is carting a clearly very ripe corpse around all over Texas and Mexico, but I couldn’t find anything suitable on YouTube.

But is this “taking control over Brexit” a dangerous delusion? What Parliament is attempting to do looks an awful lot like trying to drive a car from the back seat with pulleys and rods…while the driver is still seated in his usual spot.

Parliament cannot address the EU Council. Only the head of state can. It is May who will convey any long extension request to the EU. And unless I am missing something, the only way Parliament can make her carry a message she does not want to convey is via legislation.

Now perhaps there is enough time for that…but it isn’t clear that anyone has quite worked this out. Indicative votes on Brexit options are set for today. Some options are expected to be winnowed out, with another round of indicative votes next week. If a winner emerges, is there a plan to draft legislation to bring May to heel? And what happens if Parliament can’t agree?

And that’s before remembering, as May warned, that Parliament could choose an option that the EU won’t accept. Anand Menon in the Guardian not only thinks that’s a risk:

MPs have been bickering about an inordinate number of Brexit options…But what, if anything, will these indicative votes solve?

Well, that depends. For one thing, they will need to be careful not to encourage those who insist on ordering stuff that’s not on the menu at all. Think the Brady amendment, mandating the prime minister to tootle off to Brussels and negotiate something the EU had already said was not on offer. If parliament spends its day of control voting on unicorns, then none of us will be any the wiser.

Equally, some options might not be as simply as a yes/no vote in parliament might make them seem. Take Norway. The notion that the EU would happily give us the same deal as they give to a group of small states with economies far different to our own strikes me as being for the birds….

And, of course, sequencing matters enormously. MPs sitting through a series of votes on possible Brexit outcomes might contradict themselves. They could, for example, decide to stay in the customs union and single market while voting against a plain old customs union…..

This has, of course, been attempted in the past, notably when it came to reform of the House of Lords. In 2003, the process ended up with all options being defeated. In 2007, MPs simply provided majorities for two fundamentally incompatible options – a chamber that was 80% elected and one that was 100% elected. We know what the (non)outcome of that was.

Now to the Brexit fun of the day:

Yet another effort to push May’d deal over the line is on. One of the big ERG spokesman, Jacob Rees-Mogg, is saying he is inclined to back May’s deal as preferable to the risk of no Brexit. The DUP appears to be holding firm. both as indicated by statements to the press yesterday (that they’d rather have a one year delay than May’s deal) and in the European Parliament today.

The BBC quotes an anonymous Ultra MP as saying that even with the defections of Rees-Mogg and other waverers, May still can’t get enough votes. This is confirmed by a post on Reaction, Tragic ERG moving too late to save May’s deal:

Another day in Brexitland, the parallel universe that is the Palace of Westminster, where dazed ministers, MPs and hacks like me spend largely futile hours on end wandering around asking each other what is happening….

Large parts of the ERG die hard group of Tory MPs are moving towards May’s deal, but tragically (hilariously even, depending on your sense of humour) they may be doing so too late. In the time since they last had a chance to vote for Brexit, via May’s deal, the DUP’s opposition appears to have hardened. The coalition to get the deal over the line always rested on the ERG and the DUP folding simultaneously, and twenty or so Labour people feeling reassured enough to pass the deal. It looks as tall an order as ever.

A group of Ultras are arguing that May’s Brexit extension is illegal. I am puzzled as to why the Government didn’t tidy up the UK end of the extension by passing secondary legislation so as to change the exit date. From Huffington Post:

Senior Tory Eurosceptics have written to Theresa May claiming her accord with the EU to delay Brexit may be illegal.

Sir Bill Cash, Suella Braverman and others tell the prime minister that MPs and lawyers have “serious legal objections” about Brexit being pushed to beyond March 29.

It comes after May struck an agreement with EU leaders at a summit in Brussels last week to extend the UK’s membership until April 12 – or May 22 if she succeeds in passing her withdrawal agreement through parliament.

May’s administration sought the delay after MPs voted for a Commons motion to extend the process.

A statutory instrument (SI), a parliamentary device used to create laws, will be used to officially remove the March 29 date from Brexit legislation and is due to be debated by the House of Commons on Wednesday.

The Tory MPs claim May’s decision to seek parliament’s approval for the SI after the event “called into question the lawfulness of its actions and has (at minimum) created serious legal doubts about the legal situation surrounding the extension”.

The MPs’ letter also makes separate claims about the delay.

It states that May could have made unlawful use of the Royal Prerogative in agreeing to an extension which was “inconsistent with the intention of parliament”.

Legal precedent suggested the PM required an act of parliament to use the prerogative in this way, they said.

I am relying on Richard Smith here, since my Twitter results are picking up all the cheerleading by hard Brexit types, but he assures me that the legal eagles aren’t buying Cash’s argument.

MPs have proposed lots of motions. The Speaker will decide which to allow through for a debate and vote. These are the ones submitted for him to consider. Note that the Government has not provided any.

A) Constitutional and accountable government
Proposed by veteran eurosceptic Sir Bill Cash with backing from senior ERG supporters, this objects to the overriding of Standing Orders to allow backbenchers to control the agenda as they are doing today and proposes that in future it would need two thirds of MPs to back any such venture.

B) No deal
Proposed by Conservative MP John Baron and colleagues, this proposes leaving the EU without a deal on 12th April.

C) Unilateral right of exit from backstop
Also proposed by John Baron, this backs leaving the EU on 22nd May with Theresa May’s deal amended to allow the UK to unilaterally exit the Northern Ireland backstop.

D) “Common Market 2.0”
Proposed by a cross-party group led by Conservative Nick Boles and Labour’s Stephen Kinnock, this proposes UK membership of the European Free Trade Association and European Economic Area, allowing continued participation in the Single Market and a “comprehensive customs arrangement” with the EU after Brexit, which would remain in place until the agreement of a wider trade deal which guarantees frictionless movement of goods and an open border in Ireland.

E) Respect the referendum result
A cross-party proposal from 94 MPs including the Conservatives’ Will Quince, Labour-turned-Independent MP Frank Field and the DUP’s Nigel Dodds, this urges the House to “reaffirm its commitment to honour the result of the referendum that the UK should leave the European Union”.

F) Customs union (I)
Proposed by Stoke-on-Trent Central Labour MP Gareth Snell and a small clutch of his colleagues, this states that it should be the Government’s objective to implement a trade agreement including a customs union with the EU (and mirrors an amendment to the Trade Bill secured by Labour peers in the House of Lords).

G) Revoke Article 50 (I)
Proposed by the SNP’s Angus MacNeil, Tory MP Ken Clarke and a clutch of Labour, SNP and Plaid Cymru MPs, this calls on the Government to “urgently” bring forward any legislation needed to revoke Article 50 “in the event that the House fails to approve any withdrawal agreement four days before the end of the Article 50 period”.

H) EEA/EFTA without a customs union
Proposed by former minister George Eustice and a clutch of Tory colleagues, this plan involves remaining within the EEA and rejoining EFTA, but remaining outside a customs union with the EU.

I) Consent of devolved institutions
Proposed by SNP Westminster leader Ian Blackford and his colleagues, this requires an agreement that the UK will not leave without a deal, and that no action for leaving the EU will be taken without a consent motion passed in both the Scottish Parliament and the Welsh Assembly.

J) Customs union (II)
Proposed by Ken Clarke, Hilary Benn and others, this requires a commitment to negotiate a “permanent and comprehensive UK-wide customs union with the EU” in any Brexit deal.

K) Labour plan
Proposed by Jeremy Corbyn and colleagues, this backs Labour’s plan for a close economic relationship with the EU, including a comprehensive customs union with a UK say on future trade deals; close alignment with the single market; matching new EU rights and protections; participation in EU agencies and funding programmes; and agreement on future security arrangements, including access to the European Arrest Warrant.

L) Revoke Article 50 (II)
Proposed by the SNP’s Joanna Cherry with backing from Conservative MP Dominic Grieve, Liberal Democrat leader Sir Vince Cable and all 11 members of The Independent Group, this states that, if the Government’s deal is not passed, it would have to stage a vote on a no-deal Brexit two sitting days before the scheduled date of departure and that if MPs refuse to authorise No Deal, the Prime Minister would be required to halt Brexit by revoking Article 50.

M) Confirmatory public vote (a.k.a. second referendum)
Drawn up by Labour MPs Peter Kyle and Phil Wilson but with ex-Foreign Secretary Dame Margaret Beckett as lead signatory, this requires a public vote to confirm any Brexit deal passed by Parliament before its ratification.

N) Malthouse compromise Plan A
Proposed by former Cabinet minister Nicky Morgan with cross-party support from the DUP’s Nigel Dodds and Labour’s Kate Hoey, this calls for Theresa May’s deal to be implemented with the controversial “backstop” for the Irish border replaced by alternative arrangements.

O) Contingent preferential arrangements
Proposed by Marcus Fysh, Steve Baker and a clutch of ERG-supporting Tory MPs, this calls for the Government to seek to agree preferential trade arrangements with the EU, in case the UK is unable to implement a withdrawal agreement with the bloc.

P) Contingent reciprocal arrangements
Also proposed by Marcus Fysh and ERG colleagues, this calls for the Government to “at least reciprocate the arrangements put in place by the EU and or its Member states to manage the period following the UK’s departure from the EU”, in case the UK is unable to implement a withdrawal agreement.

Rumors suggest the EU is not planning to give the UK a “long extension” long enough to hold a referendum. It’s peculiar that there has been so little attention in the UK press, and apparently even less consideration given in the EU, as to the time required to hold a referendum under UK rules. Even though theoretically, the minimum time required is 147 days, given the importance of formulating a question well, and the deficient outcome last time despite a lot of wrangling, it’s hard to see it taking less than the tight schedule of 8 months sketched out by the LibDems, or the year it took last time. And then recall that that’s just for the referendum, not for what to do about it. The timetable needs to allow for a result other than “Remain”.

From the Guardian:

The EU has pencilled in April Fools’ Day 2020 as a leading option for Britain’s first day outside the bloc, should the UK government ask Brussels for a lengthy extension of article 50 in three weeks’ time, it can be revealed.

The date was to be offered at the leaders’ summit last week if Theresa May had followed through on her promise to request a short extension in the event of passing her Brexit deal, and a longer one should it be rejected again by the House of Commons.

Cynically, I have thought that the worst possible result for the EU would be if the UK were to ask for an extension to hold a second referendum, since that would maximize the amount of uncertainty. Even though Remain looks likely to win, look how the Tories looked certain to trounce Labour when May called her snap election. So is this less than one year limit intended to be a way to rescind the offer to allow the UK to hold a second referendum without saying so explicitly?

The 1922 Committee is trying to get May to quit. But quitting in three weeks is after the do-or-die date of April 12 (actually earlier, the EU has said no asking for an extension at the very last minute). From the Sun:

Tory grandees have told Theresa May to say she’ll quit within weeks when she addresses all Conservative MPs today.

Their shop steward Sir Graham Brady summoned the PM to a pivotal showdown of all Tory ministers and backbenchers at 5pm….

The Sun can also reveal that Sir Graham and the other five other senior officers of the 1922 committee’s executive – dubbed the Men in Grey Suits – met in secret late on Monday night in the Commons…

1922 Committee secretary Nigel Evans told The Sun last night: “I’m really pleased the Prime Minister is coming to address the ‘22.

“It would be really advisable if she set out a timetable for her departure in order that she can focus minds to get something agreeable over the line. It would then allow her to look at her legacy and say to the country ‘I delivered on Brexit’.”….

One Brexiteer who met the PM for a one-to-one meeting yesterday told her she had to announce her departure.

She replied: “Thank you for your candour.”

The MP said she “made clear” she will offer her resignation at the 1922 committee Thursday night – but only if she knows the deal will pass.

May still has some fight left in her. “Thank you for your candour” is classic.

So the UK continues to be in the midst of an overly dynamic situation. Hopefully some things will sort out today.

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  1. Ignacio

    One of my neighbours is brexiting everybody on a proposal I made to install roof top solar panels on our building.

    1. Joe Well

      The version I saw online was “Brexity” as in, “it started off well, but now it’s all gone a bit Brexity.”

      But I just searched and it looks like it hasn’t taken off.

      1. Which is worse - bankers or terrorists

        Following the failure of the indicative votes, doesn’t the public see the positives in a no deal outcome? You wouldn’t have to negotiate a future relationship…

  2. Colonel Smithers

    Thank you, Yves.

    Readers may be interested in, but not surprised by, this article from today’s Guardian,

    One reader commented:

    It has been coming on for decades. When I used to do EU negotiations even back in the 90’s the UK stood out as never arguing that something should be done because it was right. There always had to be a cost benegit analysis and the costs had to be less than the estimated benefits, however they were estimated – a curious art. And it was never FOR anything.

    Not that the rest were perfect – far from it. But it was means to an end for them, whereas for the UK The Market seemed to preclude any vision to be achieved. There really was no such thing as society. I used to find myself thinking “In the beginning was The Market…”

    Incidentally I used to encounter the Right Honourabke Member for Woking a lot. The recent remark about Theresa May’s lack of basic human skills needed by a leader applies to him. And I think to a lot of our “leaders”.

    The above is a reference to John Redwood, MP for Wokingham. One of my former bosses was a ministerial colleague and remains a constituent of his. She has echoed the remarks about Redwood. Although she came across May and lives in the neighbouring constituency, May was and is a mystery to many, even Tories.

      1. Colonel Smithers

        Thank you, Vlade.

        Not a new problem, either. EEC membership in the 1960s and 1970s split both parties. It was the same with monetary union in the 1990s.

        It’s not just the Tories and Labour, the old Liberal heartland in the south west of England voted leave, but, as the number of Liberal MPs can squeeze into a black cab, the party split is not obvious.

    1. Mirdif

      Nice article you’ve linked to there. I may well read “The Lion and the Unicorn” again. IMO, the first part “England Your England” remains as accurate today as it was then and is very pertinent to the discussion about Brexit.

      I’ll leave one quote from it:

      “…the battle of Waterloo was won on the playing-fields of Eton, but the opening battles of all subsequent wars have been lost there. One of the dominant facts in English life during the past three quarters of a century has been the decay of ability in the ruling class.”

    2. Summer

      “When I used to do EU negotiations even back in the 90’s the UK stood out as never arguing that something should be done because it was right. There always had to be a cost benegit analysis and the costs had to be less than the estimated benefits, however they were estimated – a curious art. And it was never FOR anything.”

      The type of cost vs benefit analysis isn’t so curious. It’s about cost vs benefit for a select group. It usually turns that the root of the analysis is “who is going to bear the cost?” There is no conservative spending in cronyism. There is a “society” that is well tended by those reps as they deny there is a “society” for anyone else.

      1. David

        I know what this guy means. The fact is that the UK never had an agenda of things to do “because it’s right” to put forward anyway. It was only interested in initiatives which it thought would bring economic benefit to the UK. The rest was described, in the elegant formulation of one senior diplomat of the time as “Eurofroth”, which the pragmatic negotiators of the UK would argue them out of.

          1. larry

            The UK pushed them towards it? While the UK has been neoliberal since the late ’70s, it was only in the ’80s that they became aggressively so. But did they export it?

  3. Clive

    The indicative vote — and the general reaction I’ve seen to it in terms of how much it has helped or hindered — reminds me of a spectacularly bad Marks and Spencer’s Christmas TV commercial from a few years back.

    What was intended to be a warm, gloopy round up of familiar and welcome old favourites all tied in nicely together to tempt the onlooker and to make them think happy thoughts — perhaps even persuade some into buying what was on offer — managed to annoy everyone who was unlucky enough to not be able to avoid it. It was too familiar, too knowing, too self-referential, too clumsily executed, too superior, too slanted, too faux-friendly and too here-for-you when it was there-for-themselves.

    I keep asking because I keep seeing the same missteps. Does Remain really want to win? If so, the question — the only question — is for Parliament to ask (and answer) “is Article 50 to be rescinded?” and it’s either going to be a “yes” or a “no”. If it is “yes”, your problems are solved. If it’s “no” then it’s either No Deal or a Deal.

    And the current Deal is the only one the EU will agree to. If you want a different deal then you have to be prepared to rip up the last two years’ work and start again. You’ll need to persuade the EU27 to go along with that. And you’ll need to replace the May administration (along with May) and have a General Election. At the conclusion of which, a fair few of you might find you’re no longer MPs. Which probably explains why we have the performance we have laid on for our entertainment today.

    1. fajensen

      Does Remain really want to win? If so, the question — the only question — is for Parliament to ask (and answer) “is Article 50 to be rescinded?”

      I think, with great regret, that the majority of “Remain” are professional consultancy-types, who want to be seen as “being on the right side” to boost their brand amongst their peers, while not personally caring much either way, because they are not really going to suffer.

      The other option, of taking a clear position in public and actually working to bring it about, that carries a risk of winnowing down their next-step jobs or the consultancy contracts and they do have 1’st world mortgages and expenses to pay.

      I.O.W: “Trying” is the safe, designated “Free Speech Area” for “progressives” who still wants their bread buttered for them by The Man.

      1. Yves Smith Post author

        To your point, some Remain supporters are also ambivalent. Remain is now polling ahead of Leave, but if you ask if the referendum results should be overturned, a lot of Remain supporters/converts say no, they don’t like the idea of voting again and again. It may come from sports, that a game was played and the two teams duked it out, and having the same matchup again because some didn’t like the results somehow feels wrong, like cheating.

        1. vlade

          Honestly, I don’t understand it (especially when the implications of leave vote are now clearer) – “you won fair and square, oh, and that bit I didn’t understand about if I lose being a guest of honour on the feast to Quetzalcoatl, well though luck for me I guess.. ”

          No-one (except for some African “one vote, one time” countries) says that there should be just one elections and the winning party have a monopoly after that..

          I guess that’s humanity for you

          1. The Rev Kev

            Maybe with these people, they think like Milton when he wrote: “Better to reign in hell than serve in heaven”

          2. Temporarily Sane

            Yes, those dastardly Africans and their referendum reruns. If seems to me that you’re reaching to find a reason to justify a second referendum. As someone who doesn’t have a dog in this race the “but we had no idea that leaving the EU might have implications so we need to vote on it again” line sounds absolutely laughable. Imagine if Remain had won and Leavers demanded a second referendum because Britons, when they voted the first time, did not fully appreciate the serious “implications” of electing to indefinitely remain within the EU. Exactly.

            Annulling Brexit would not only be profoundly and shockingly undemocratic, it would turbocharge the crypto fascist right’s “brand” and weaken, perhaps fatally, their political opponents. Talk about implications (and unintended, but entirely predictable, consequences).

            The personalities and organizations pushing the “people’s vote” are from the comfortable class for whom the really biting effects of neoliberalism are largely academic abstractions that happen to other people. (Isn’t Tony Blair, a bona fide war criminal and neoliberal über villain, one of its key cheerleaders?) Anyway, it seems to me that fear of uncertainty and status anxiety drive the most vocal Remainers, rather than a principled altruism or solidarity with the downtrodden. Lots of cognitive dissonance and denial going on there. From a left leaning perspective holding a pro-EU position, given that particular institution’s actually existing track record, is not entirely rational and it certainly isn’t self-evident or “objective.”

            If you still believe in democracy you have to accept Brexit…even if you voted against it.

            1. vlade

              Good grief.

              A nice straw man you have there, with Africans and referendums. But hey ho, got used to the saviours of democracy using whatever comes..

              But if you want a proper referendum country, and not just “this democratic vote makes me your dictator for life”, we need to look at Swiss. Who run referendums as a way of life. And guess what. They have no problems with re-runs.

              Implications? Everyone knew that there would be implications. But no-one knew what leave meant, because there’s so many possible ways in leave – see yesterday’s vote. I know people who voted leave, assuming Norway/Swiss agreements. And would never, even vote for anything remotely like hard Brexit. So the initial referendum was deeply flawed, and undemocratic, because it pretended to give people a clear binary choice when it did nothing like that.

        2. ChrisAtRUTT

          LOL … We might need best two out of three or ${DEITY} forbid, a seven referendum series to ultimately decided this then.


  4. windsock

    “…Corbyn has kept May in place way way beyond her sell-by date.”

    No he hasn’t. He has repeatedly urged the Government to call a General election. He does not have the votes in Parliament to support a vote of no confidence and force a general election. He would also need the support of Conservative and DUP MPs to do this under the Fixed Term Parliament Act. They ain’t going to do that.

    1. vlade

      re-read the sentence. Below with split to make it explicit.

      “[…] the fact that the Tories were even less willing than usual to risk a loss in a general election – because Corbyn – has kept May in place way way beyond her sell-by date.”

    2. brook trout

      Ah, modern syntax. “Because Corbyn,” I imagine, is a use of the “because” phrase in its modern, truncated sense, e.g. “we can’t do this because markets.” So “because Corbyn” actually becomes the subject of the phrase, which means that the specter of a Corbyn premiership is what is keeping May in office, not the actions of Corbyn himself.
      Beaten to the punch, I see. Slow, aged fingers on the keyboard.

      1. Yves Smith Post author

        Yes, correct. “Because X” is US slang that may not have made it across the pond. I like mixing formal prose with informal/snark to liven up the text.

        1. Redlife2017

          Yeah, I had to re-read the sentence as I’m too used to British English. It is a VERY true statement. Considering I’ve seen articles in the Torygraph where the writer clearly thinks that Corbyn is a) a Trotskyist and b) will introduce Gulags as well as had a co-worker state point-blank “Corbyn is a Communist”, uh yeah, he has kept her in power. If Ed Balls was in charge, we would have had a Labour government for at least the past 3 months. Not that I want Ed Balls in charge. It’s just the reality. The only way Labour / Corbyn gets to take over the government is if a GE is called and he wins.

        2. Avidremainer

          The Revoke Article 50 petition is still going strong-6700 votes an hour and is now 130,000 short of six million. This really is quite a phenomenon. It is still going strong and seems to be rattling the Brexiteers
          There is a really helpful feature on the site. It shows both the percentage and number of constituents who have voted. Even 10% of JRM’s constituents want a revocation.
          The constituency map also shows Corbyn’s problem in a nutshell. Places like Doncaster, Rotherham, Wigan, Birmingham, the N.E. Midlands barely register 5% in favour. The prosperous areas of the country, and most populated areas are registering 20% plus, some are at 30% and rising.
          The areas which register 5% and below are normally rock solid Labour seats. You could put a monkey in a red rosette up for MP and you would be weighing the votes not counting them. They are also the areas which suffered great harm under Mrs Thatcher-she was really vicious in Labour areas and austerity.
          John Harris of the Guardian has a series of vox pops-on the Guardian website-in which he tours Brexit land to find out why Brexit? In one he says to one person ” Don’t you realise you will be poorer if we leave the EU? ” The reply is quite heartbreaking. ” No” replied the man ” I’ve nothing left to lose “. Now I might think that the man’s anger should be directed at the architects of his problems-the Conservatives. It just goes to show how powerful the Conservative propaganda machine is that he doesn’t.

          1. eg

            ”Don’t you realise you will be poorer if we leave the EU? ” The reply is quite heartbreaking. ” No” replied the man ” I’ve nothing left to lose.”

            Like Mark Blyth’s favourite Brexit anecdote. A speaker warns the crowd that a vote for Leave is a vote to have a reduced GDP, when a voice from the back replies, “your GDP”

            The pain of such people is real. The failure of those who purport to represent them is its own scandal which ought not to be forgotten.

  5. David

    What Brussels is looking for, I think, is signs of intelligent life from Parliament , so that May can go back to Brussels and say that the following options have in effect been identified by Parliament as worth further evaluation and decisions.That’s not much, agreed, but it’s probably enough to break the deadlock.

    I’m not surprised about the legal challenge. IANAL but I remember thinking it was odd that May was invoking “international law” to overturn primary UK legislation with a hard-coded date. The Council Conclusions may be legally binding – sort of – but they are really just a document agreed between members, not a treaty, not ratified by the parliaments etc. And of course the UK itself is not party to the Conclusions. So it seemed odd to me that UK law could be overturned by a decision taken by a group of which it is not a member. It’s a good thing that for any question you can always find a lawyer to argue both sides.

    1. vlade

      not lawyer either, but dealt with some pretty complex legal docs in my time..

      Triggering A50 put in an international law date (leave).
      The extension is an instrument under international law (A50 mentions it explicitly).
      As long as granting the extension is procedurally valid, the action of formally extending is acting within the treaty. No other “ratification” etc. required.

      EU(W)A does not say that the _treaty_ must be repealed on that date (and, under Vienna convention, it cannot, as in this case Lisabon treaty specifies the mechanism of leaving via A50, and so must be followed. Article 51 of the Vienna Convention on the Law of Treaties applies, article 56 is irrelevant as A50 is the mechanism for leaving. The UK cannot leave the EU unilaterally by passing domestic law. It must follow the A50 process). It talks about repealing EU(C)A and embedding some of the EU law into the UK law.

      If SI is not passed, a proper mess will ensue, but it will not get the UK out of the EU.

      1. Davida

        Put like that, it’s a lot clearer than when May tried to explain it. Hardly surprising really. In effect, the UK was exercising its rights under Art 50 to request a delay and the EU responded.
        In the meantime, I found a useful little note by Prof Mark Elliot that explains the issue well. Interestingly he suggests that there’s nothing to stop May asking for any number of extensions, subject of course to the EU granting them.

        1. vlade

          Ah, the interesting bit on that is that Section 1 of EU(W)A wasn’t brought into effect yet – and if it doesn’t, the exit date problem is less (if still quite a bit) o a problem.

        2. vlade

          Another interesting tidbit from the note:
          “And it is for this reason that whatever domestic law says about ‘exit day’, the UK will leave the EU in accordance with last week’s European Council decision”

          That implies – and the current extension is a precedent – that if the UK asks for an extension, the EU can give any date it likes. The UK did not, as far as I know, said to the EU on the last extension “we agree”, so the interesting bit would be if the EU came back and said “the period provided for in Article 50(3) TEU is extended until 31 Dec 3000″… I assume the UK could then say “nooooo” – the A50 says ‘in agreement with the Member State concerned’ – but it’s not clear whether the agreement is related to the date, or to making the request to extend.

          1. David

            Yes, I wondered that. I was struck by the fact that there didn’t seem to be even the faintest hint of negotiation with the UK before the extension, and I was waiting to hear that May, or the government, had formally accepted the EU’s proposal, but it never came. This was odd because the decision, as you say, is supposed to be “in agreement with the state concerned.” I must have missed that bit. To be fair, Article 50 was never intended to cope with this surreal situation, and I think the basic meaning of the text is that there might be cases where both the EU and the departing state amicably agree that a bit more time is needed for some reason.

      2. Yves Smith Post author

        I agree with your position. The only possible counterargument is that the UK high court had ruled that May could not invoke A50 without Parliamentary authorization because it involved citizen’s rights, she was acting impermissibly in seeking an extension without getting legislation or a SI that countermanded the hard-coding of the A50 date. As in her going to the EU on a mere motion from Parliament was an invalid act.

  6. Ignacio

    I’ve read that Rees-Mogg (and Boris Johnson) reaction has spurred reaction from the ultras that have called a “judas moment” on Boris. I don’t know the numbers but it’s being counted the number of tory MPs that would today change their vote on the WA on this “lesser evil” move by some brexiteers. Migth it turn out that WA is finally passed? Is anybody counting the chances?

    1. vlade

      DUP is still refusing to play ball. There’s probably about 20-30 Tories – a mix of hardline Leavers and Remainers (now that’s a coalition) so even if DUP falls in line, it would require 10-15 Labour MPs voting with it.

      Tough call – but probably closer than last two votes.

    1. Redlife2017

      +1000. You can never go wrong with the original Italian Job. It’s quite honestly one of the most British films I have ever seen in my life. Mix it in with the original Get Carter and you can understand the British psyche a bit more. Those two films have been of great use to an immigrant to such a weird country…

      1. David

        There’s a whole sub-text to the Italian Job, based on fears in the 1960s that the UK was going to be overtaken by Italy (the “sorpasso”, which never really happened). In the film, the upper classes (Noel Coward), the working classes (Michael Caine) public school toffs (the drivers) and middle class technologists (Benny Hill) get together with the best of British engineering (the Minis) to re-establish British dominance. It’s one of the best reminders of the optimism of the 1960, when people thought that you could build a better and happier society. Poor fools.

        1. Colonel Smithers

          Thank you, Eustache, Redlife and David.

          I am glad that David used the phrase “the optimism of the 1960s”. I have long thought about using it on this blog for a Brexit thread.

          My parents, mum’s big sister and godfather arrived in the mid-1960s. Other relatives arrived in WW2, the 1950s and 1970s. As the family is bilingual / multi-lingual, the migrants considered the UK, France, Canada and Australia, but thought the UK offered more opportunity and was easier to settle in. All have mentioned the “optimism” of the age, especially the 1960s, and even the maligned 1970s.

          It’s only now, not that it makes any difference for them, as they are in their 70s and older, that they wonder what might have been.

          That is the tragedy of the UK since the neo-liberal jihadists took over from Thatcher onwards.

          1. flora

            Sometimes, after watching an old StarTrek TV episode, I wonder if Milton Friedman was really a Ferengi, sent from the planet Ferenginar to destroy the West.

            “They originated from planet Ferenginar. Ferengi civilization was built on the ideals of free enterprise, where earning profit was the sole meaningful goal in life, superseding all other endeavors.” – Memory Alpha

            1. Gary Gray

              More like, the west went global. You can’t destroy that is everywhere. This is where I totally disagreed with Spengler on the term of “decline of the west”. The west was a piece of fiction that was created out of the horror of Rome’s collapse. In the 1800’s it began to go global. That means it never was oooooouuuuurrrrrrrssss in the first place.

              Any good Wodonist just doesn’t want the “west” to collapse, but bring down the whole world as well.

              1. flora

                Since I was talking about philosophy, not geography, I should perhaps have written, “sent from planet Ferenginar to, uh, ‘enlighten’ us…” ha.

      2. Alex Cox

        Good observation!

        To understand the English, I would also screen The Loneliness of the Long Distance Runner directed by Tony Richardson, and O Lucky Man! by Lindsay Anderson. Richardson’s film deals with the conscious hopelessness and rage of the Northern working class (the brexit voters) and Anderson’s is a wonderful panoply of the insane, authoritarian, vulgar, occasionally beautiful place that was England in the 1970s. Then, for a maximum-bleak view of same, there’s A Clockwork Orange.

  7. Jack

    Active reader of NC here. Been keeping up with all the Brexit info and really appreciate the insights everyone has to offer. One thing I don’t understand though, and perhaps someone can clarify this for me. It seems to me that Ireland could take control of this whole process. By that I don’t mean the internal politics of the UK, but by the fact that they are are going to be the most injured party because of the border issue with NI. Certainly as a member of the EU the Republic of Ireland has all sorts of rights and protections under that body, and because of the Good Friday agreement both NI and the ROI have obligations to each other and the UK has obligations to both of them. While I am far from being an expert on the Irish issue, after a quick parsing of the Good Friday Agreement it seems to me that the UK cannot leave the EU without settling the Ireland issue definitively, or at least renegotiating the Agreement to allow for a hard border between the two Irelands and requiring the citizenship of all parties to be decided definitively. In effect it seems to me that the UK is in violation of the Good Friday Agreement by attempting a Brexit without solving the Irish situation first. Would not both the ROI and NI have valid claims against the UK and EU in the International Courts, the jurisdiction of which still applies to all parties? Or maybe the ROI knows it could take charge of the whole mess and has decided not to?

    1. Ember Burns

      I think your analysis is correct. Brexit is what is known as a wicked problem: “A wicked problem is a problem that is difficult or impossible to solve because of incomplete, contradictory, and changing requirements that are often difficult to recognize. ” The UK must choose between having a united kingdom or leaving the EU; I cannot see how it can be otherwise.

    2. Clive

      Brexit does not break the Good Friday (Belfast) Agreement

      Article 50 is in the Treaty of Functioning of the European (TFEU). This means any signatory to that Treaty can invoke it and all other signatories to the Treaty accepted the Article being there in the first place and the implications of it being triggered.

      While many may now claim this- or that- fall out from doing so by the UK, that is, to cut a long story short, just too bad. Here, as elsewhere, people who sign things should be clear what they are getting themselves into. And lest anyone think “oh, well, it’s because of a No Deal Brexit that you’d be faced with the worst of the problems in terms of NI/the Republic”, No Deal is the *default* outcome of Article 50’s invocation. Anything over and above that is a nice-to-have in terms of the provisions of the TFEU.

      I have little sympathy for governments (e.g. those in the EU27) who didn’t think things through clearly enough when they drafted and then signed the TFEU.

  8. Anonymous2

    On definitions of Brexit – reportedly heard in a playground:

    ‘You made a complete Brexit of that’

    i.e. total mess.

  9. Tom

    The government yesterday responded to the nearly 6M petitioners thus. The first two sentences

    This Government will not revoke Article 50. We will honour the result of the 2016 referendum and work with Parliament to deliver a deal that ensures we leave the European Union.

    The first sentence seems plausible. The second seems to incorporate three falsehoods in a row.

    1. vlade

      You omitted the second part of the second sentence – “and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain.”

      Also: “undermine […] and the trust that millions of voters have placed in Government.”. Last polls indicate 7% is the number of people who see the govt’s handling of brexit as competent. Technically correct I guess, since there was about 32m voters last time, of which 7% is just over 2m, so “millions” is justified..

  10. Jim A.

    At some level, the problem is not only the the UK is split on Brexit, it is that the major parties are split. Throw in the non-binary options, comparatively strong party structure, and the fact that the rest of the EU has a say in what can and can not happen, and chaos was almost inevitable. The fact that May seems more interested in politics than policy just adds to the confusion. I just don’t see how anything other than crashout is possible at this point. Everybody is fighting over who is in the driver’s seat, nobody has control of the car, and it is headed over the cliffs of Dover.

  11. vlade

    Fun in Westminster.

    JRM accuses Letwin and Boles of ‘not respecting the referendum result’. Boles response that he voted for May’s deal, where was JRM?
    JRM consequently accuses Letwin and Boles as ‘not acting as Etonians’. I guess for him it’s a mortal insult.

    Oh, and he also argues that the government should run the parliament’s agenda because privy councilors run it for Tudors. I guess he missed the 17th and 18th century. Not surprising, really..

    1. Colonel Smithers

      Thank you, Vlade.

      What?! No mention of Gresham and Stowe? Synoia and I are mortified!

      1. Synoia

        Gresham’s was a school for wealthy Farmers. All Conservatives to the core, yet totally dependent on farm subsidies (Largess from the Crown).

        I remember only one Labor supporter, I can recall.

        not acting as Etonians

        Really? No backstabbing, bullying and total contempt for the working class (“Those who are not one of us”?

    2. David

      Well well, I am surprised. I think there’s a basic rule of politics which says that the number of parts a political group can split into is only limited by the number of members of the group. May the blood-letting start soon.

      1. Synoia

        Number of people in a group = n.

        Number of factions possible = !(n -1)

        It’s not the number of members which determine number of factions, but the number of possible relationships which are the cap. Which when considered explains treachery among allies very well.

        1. David

          Yes, actual political parties tend to split more cleanly than that, but I should have said that if a group notionally stays together, then the number of possible factions depends on the number of potential combinations. The larger the political grouping (eg in the British system) the more scope for factions, factions within factions and overlapping factions, because the parties tend to be coalitions to start with. In PR systems with lists, you are more likely to start a new party than a new faction.

        2. larry

          I think the shriek symbol should go after the function so as to indicate a factorial. As in (n – 1)!.

  12. Avidremainer

    Well he could hardly cite the 17th Century could he? The 18 century wasn’t much better.
    Georges I and II preferred Hanover and George III did well over America.
    The ERG have resurrected the Star Chamber so I suppose for him that is a step in the right direction.

    1. vlade

      and he also killed any motions that would allow the Parliament to vote to bypass his test. Cute.

    1. NIx

      And it might pass. The Boris’s and the JRMs et al are chomping at the bit to prove that they can negotiate something better with the EU. But they can only do this if we are in a transition phase. And we don’t get one of those if we crash out.

      Heaven help us all!

  13. Tomonthebeach

    I thought that the plan all along was to dither till the clock stops, crash out of the EU with no deals, then ignore EU claims for reparations, force the world to play by the UK’s rules on trade, travel, and such, and; despite it all looking like a rerun of the fabled charge of the light brigade, miraculously Britania will once again rule the waves and everything. No?

    I feel like a psychiatrist who after days of trying to talk a suicidal person into no leaping off a tall building, in a lapse of frustration says:

    Okay, jump already!

  14. ChrisPacific

    I believe Parliament is attempting to solve the wrong problem. They say they are holding a series of votes to find out what Parliament wants. But we already know what Parliament wants, at least on an individual basis, because the members have not been shy about telling us. We also know that there is no majority for any of the options. I suspect that all today’s votes won’t change that fundamental fact.

    The sports analogy from Yves above may not be a bad one. Like a sporting event, we have various factions (teams) each with its own fervent supporters. Like sports, the chance that the supporters can come to an agreed consensus on which is best is close to nil. As is often the case in sports, there is a need to identify a single winner. So how is it done in a sporting context? You agree a process by which a winner will be determined. There will be a tournament. It will be played in [format – round robin, knockout, combination] at [venues] on [dates]. The rules governing it will be [rules]. The winner will be determined by [victory criteria]. There might be a lot of wrangling over the format, rules, venues etc. as different parties angle for their own advantage, but – crucially – once that’s all done everybody concerned agrees to let things play out according to the agreed rules and respect the final result, no matter how misguided or unjust or out of line with personal beliefs it might seem to any individual.

    That could have been done for Brexit, but not in the time remaining. So Parliament has done what people usually do in these situations, and jumped straight to implementation without taking the time to actually come up with a plan and process that will produce the desired result. It will turn out like it usually does – we will hear a lot of things that we already know, no additional clarity will be achieved or decisions taken, and the UK will be no further along than it was, only with fewer days remaining until the deadline.

    (Incidentally, I suspect this is why people are so annoyed at government. There are ways of picking a single winner even in the face of irreconcilable differences. People see it in action every time they watch their local sports team. Because FPTP elections typically produce not a government but an elected dictatorship, this is the first time many politicians have actually been expected to perform the function of government, and they have generally failed spectacularly at it).

  15. ChrisPacific

    Voting done. Parliamentary opinion now comes in eight new flavours of no. The closest to passing was, I believe, one of the unicorns. Highest vote getter was apparently some variant of a second referendum.

  16. Sanxi

    Never have so many, been wrong about so little, so often, and so badly. What would Matt Taibbi say? Using neutral terms, the EU and the UK do have and will continue to have an economic arrangement and all that entails. From being a full member of the EU, to not and having something imposed on them as a third country. It is as linear. All else is drama as a form of faux journalism. Before anyone blows their top, I will prepare a meta analysis of posts and comments on this blog that prove this point. I have no agenda, simply annoyed, that the attempt at being objective is not in evidence. No I’m not a favored hipster here, but I am conducting myself in a civil manner. What is one to do, if in strong opposition? How does one say it? In the end either one says it or not, either it is allowed or not. Brexit is small change in terms of the discourse required for dealing with a climate world out of balance for human life. All those choices are about giving things up, like cars. Or not. But, it all must be discussed. If not, all is lost.

    1. vlade

      You ignore few millenia of human history. As an example: ” Brexit is small change in terms of the discourse required for dealing with a climate world out of balance for human life”. Indeed.

      Except for most people Brexit is now and here (especially in the last few weeks – before that, it was very much in background), while climate change is still (even with its effects being felt more and more, even in the UK) just a bit of handwaving.

      But you can see the same even with your argument.

      Saying that Brexit is linear, and the result will end somewhere on the axis. True.
      But so is climate change, and we’ll end up somewhere on the axis (where human race dying out entirely in a very short period of time is still fairly unlikely, Earth had warm period and life survived, even trived. Human civilization as we know it – different place on the axis). So all else is drama and faux journalism. After all, some will win, some will lose.

      Or, for the matter any problem, no matter how large or small. Or if you want to take it to the extreme side of this axis, well, Earth will die in a few billions years latest, Sun will die a bit after that, and give it enough time the whole universe will do. Brexit is just a blip, climate change happened numerous times for different reasons, and certainly will again before Earth is swallowed by Sun blowing up.. So, what’s the point?

  17. Andrew Thomas

    I have missed something. I thought that the U.K. had to approve the WA by March 29, or crash out on April11 or 12; if WA approved, then date of Brexit pursuant to WA is in May the day before EU election. Was the point of all of this to satisfy U.K. parliament rule about submitting the same thing over and over in the same session? I thought there was a way around that which could be invoked. I don’t understand the point of all of this- MV3 has to take place and pass Mar 28 (today, now) or 29, or the U.K. crashes out April 11or 12. The events in parliament yesterday do not seem tethered to that reality. I must be wrong. Please help.

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