It is fair to say that after another tumultuous week in
Brexit-land, we have only succeeded in ending up where we originally expected. The
Withdrawal Agreement was heavily rejected on Tuesday for a second time; MPs
indicated on Wednesday that they did not wish to leave the EU without a deal in
place and parliament yesterday instructed the prime minister to request a three
month delay to the Article 50 deadline. It is no exaggeration to say that the
eyes of the world were on Westminster and not necessarily for positive reasons.
But we are by no means out of the woods. It has been clear
for a while that the UK’s best option was to seek an extension of the Article
50 deadline but having got to that point I am less sure about what happens
next. The UK now has to formally request an extension and it is by no means
certain that it will get what it wants. Until recently, my assumption was that
the EU would grant three months as a matter of course merely to prevent the
worst case outcomes from impacting on the EU economy. But the mood music across
the continent appears to have changed.
What will happen if the Withdrawal Agreement is resurrected for a third time?
The Commission’s view is that the UK must be able to show “a credible justification for a possible
extension and its duration.” The UK thus plans to seek an extension for the
purpose of implementing the necessary domestic legislation, which it cannot now
do before 29 March because it has wasted so much time in trying to pass the
Withdrawal Agreement. But as it currently stands the UK has not decided the
terms on which it wishes to leave the EU, so it is hard to argue that it is in
a position to implement any legislation. Therefore, it now seems likely that
the UK will drag the corpse of the twice-rejected Withdrawal Agreement before
parliament once again in a bid to give Theresa May a little bit of cover when
she makes her case to EU leaders next week.
This is a very risky strategy. If parliament does ratify the
deal, there is a very high likelihood that the EU27 will agree to Theresa May’s
request. But if it does not it is a whole different ball game. So what are the
chances that dissenting MPs will swallow their pride and vote it through? There
appears to be a dawning realisation amongst the Brexit-ultras that the EU is in
no mood for reopening negotiations and that if they reject the Withdrawal
Agreement yet again, they may well reduce their chances of getting any Brexit at
all. The DUP also appear to be biddable. Much appears to depend on whether the
rebels buy the latest arguments from the Attorney General that the UK could
unilaterally break away from the Irish backstop under the terms of the Vienna
convention.
In simple terms, Article 62 of the Vienna convention says
that if there has been "a
fundamental change of circumstances" following the conclusion of a
treaty "which was not foreseen by
the parties", then the countries involved would be allowed to withdraw
from the treaty. But since the current arrangement says that the backstop will
come into place if no solution to the Irish border can be found, it is hard to
argue that it would be unforeseen. Moreover, since the Attorney General argued
only on Tuesday that there continue to be no grounds for the UK to unilaterally
exit the backstop, and since nothing has changed in the interim, this does
rather sound like a desperate ploy. But since rationality has very little to do
with the Brexit debate, it might just be enough to convince those who want to
be convinced, and thus enable the Withdrawal Agreement to be ratified.
And what if it is rejected?
But if it is rejected once again, MPs will have sent the
prime minister “naked into the conference chamber” (to quote Nye Bevan). She
will not have any cards left to play and the EU will be in a position to call
the shots. Do not be surprised under those circumstances if the EU offers a
much longer extension (e.g. until the end of 2020) with conditions attached
that the prime minister is unable to accept (e.g. participation in the European
elections). You can imagine what the Conservative Party reaction would be to
such a proposal. Remember that almost one-third of MPs yesterday voted against
an extension of Article 50 (i.e. for a hard Brexit), and of those who did
support the extension many will have held their nose in voting for a short
postponement. They are far less likely to accept one which runs (say) to
end-2021.
This will put MPs in the position of having to choose
between a no-deal Brexit and a long delay. But there is always a chance that
Theresa May could put the Withdrawal Agreement up for a fourth attempt.
Incidentally, if the margin of defeat follows an arithmetic progression, the
sequence runs 230 (January), 149 (Tuesday), 68 (next week), -13 (fourth
attempt). So it could pass on the fourth attempt after all. I thus do not buy
the view that if the EU turns down May’s proposal next week that a hard Brexit
will emerge by default.
A whole new dimension of Brexit issues
But we should not overlook the fact that the Brexit debate
is about to enter a new dimension. In the short-term, the UK is about to throw
itself on the mercy of the EU. But EU politicians, as opposed to the Council
and Commission, are likely to take a much harder line on an extension.
Attitudes are hardening amongst EU governments which fear that Brexit could be
a distraction in their fight against populist politics in their own countries
during the election campaign. There are also concerns that if the UK were to
extend its EU membership beyond mid-year, but refuse to take part in
parliamentary elections in May, the legitimacy of the parliament would be
called into question which would give ammunition to the many populists across
the continent. Make no mistake, the EU is rapidly running out of patience.
Even if the UK does ratify the Withdrawal Agreement and
leaves the EU by mid-year, thus entering the transition period that runs to
end-2020, a whole new set of problems will emerge. The UK will have to
negotiate what sort of future relationship it wants with the EU. The
shenanigans over the course of recent months, with those responsible for
negotiating with the EU voting against the agreements they reached when they
returned home[1],
is not exactly going to fill the EU with confidence that the UK is a trustworthy
partner.
It is also a fair bet that Theresa May will resign if she
can negotiate the UK’s exit by mid-year. After all, why put herself through the
stress of dealing with her divided and unthankful party? It will be left to
another prime minister to deal with the longer-term arrangements, which could
change the complexion of negotiations, but it is unlikely they will be any more
successful than Theresa May in squaring the circle of domestic and
international requirements. The initial stage of leaving the EU will not, in
the words of Winston Churchill, be the beginning of the end but merely the end of the
beginning.
[1] The
classic example is former Brexit Secretary Dominic Raab who was responsible for
negotiating the Withdrawal Agreement between the UK and EU but who has twice
voted against it in parliament. His successor Stephen Barclay this week made
the case for extending the Article 50 deadline beyond March and then voted
against it.
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