UPDATE: 14 December 2018 - Theresa May decided to postpone the vote after realising she was never going to win in the Commons. She went back to Brussels to get reassurances from the EU leaders, who said they would be happy to offer clarifications but will not reopen the deal for negotiation. This in essence means that the deal is still as unpalatable to both sides of the Brexit debate as before. A leadership challenge was triggered within the Conservative Party, but May survived, meaning she is now safe from her backbenchers for at least a year. The UK, however, is due to leave on 31 March 2019...
A few weeks ago, after what I think we can nearly all agree was an embarrassing, arduous slog, Theresa May managed to come away from negotiations having finalised a deal for Brexit.
The backlash was pretty immediate, and there was a number of high-level resignations, including the Brexit Secretary Dominic Raab, Transport Minister Jo Johnson, and Esther McVey the Works and Pensions Secretary – although her departure may have been to avoid having to publicly answer the UN’s damning report into UK poverty. Jacob Rees-Mogg made a big show about how he had the numbers to trigger a leadership election within the Tory Party, although presumably there was less support for a challenge than he thought, as nothing came from it.
Most recently, the Universities and Science Minister Sam Gyimah resigned, stating that he viewed Theresa May’s deal as a deal in name only, and that the UK would be “hammered” in any future negotiations. His resignation came as the UK abandoned its attempts to gain access to the EU’s Galileo satellite-navigation system, of which the UK contributed £1.24bn towards building.
The deal, to May’s credit, is probably the best she could have managed, based on political realities presented before the referendum even happened. In effect, we aren’t leaving the EU so much as just reducing our influence. We will no longer have representation in the European Parliament or the Commission, but will still have to follow all the laws they create, and be bound by the ECJ. If we don’t resolve the Irish border issue by 2020 we will enter a backstop arrangement, which the attorney general has warned will trap the UK in “protracted and repeated rounds of negotiations”.
That comment from the attorney general was written in a six page legal advice document given to the government. Parliament used an archaic humble address that demanded the government turn publish the document, and the government refused to comply. After a vote for contempt was scheduled, the government attempted to circumvent it by having the matter passed over to the privileges committee, but that was voted down. The government then lost a second vote where they were found to be in contempt of parliament for the first time in history.
A third defeat came in the form of an amendment by Dominic Grieve. Under the EU Withdrawal Act, should parliament vote down the negotiated deal, the government has 21 days to come back to them with what it proposes to do. Grieve’s amendment gives more control to parliament in that situation, allowing MP’s to make changes to that proposal. Those changes aren’t legally binding, but the government would be foolish to disregard everything.
Immediately after their three parliamentary defeats on 4 December, the government opened up five days of debate around the deal, which will culminate on a vote as to whether or not to accept it on 11 December. There is also a televised debate tentatively scheduled for Sunday night between Theresa May and Jeremy Corbyn, but even that has been mired in drama because neither party could agree the format. The BBC’s more inclusive proposal - supported by Theresa May - has been scrapped, leaving ITV with a straight head-to-head debate proposed, but no guarantees that it will happen.
What if the deal is approved in Parliament on 11 December?
Given the current mood of the house, and those aforementioned defeats, it seems exceptionally unlikely that the vote will make it through the Commons. However, in these unpredictable political times, and five days of debate scheduled in the Commons, May might manage to convince enough MP’s that her deal is in fact what’s best for the country.
Should the deal get approved by MP’s it will then move to the House of Lords who will similarly have to give their approval. In the past, the House of Lords have not been shy about sending bills back down to the Commons when they haven’t liked them, but, since this isn’t proposed legislation but consenting to the terms of a deal negotiated by May’s administration, there isn’t opportunity for amendments, and if it was passed by MP’s the Lords are likely to follow.
It will, however, spell the end for May’s administration if the bill does pass. Following her general election loss in 2017, the government is relying on the DUP to prop them up with a confidence and supply agreement that gives them a very slim majority. The DUP have categorically stated that they are opposed to May’s deal, which will create a separate customs territory for Northern Ireland compared to the rest of the UK. If the deal passes, they will no longer prop up her government.
If May loses the support of the DUP then she no longer has a majority in the Commons, and will be even more exposed to a vote of no confidence, which could trigger a general election.
What if the deal is not approved in Parliament on 11 December?
In all likelihood, this deal is as good as dead on Tuesday when MP’s vote. Labour do not support the deal because it fails their six tests, the DUP don’t support the deal because it creates trade barriers within the UK, Brexit-supporting MP’s feel (correctly) that it ties us to the EU “indefinitely” (in the words of the attorney general), Scotland overwhelmingly voted to remain so the SNP don’t support the deal, and the few remaining Lib Dems have campaigned as the party opposed to Brexit altogether.
As stated above, the government will have 21 days to come back to Parliament with a proposal on what they intend to do, and MP’s can now contribute to that given the amendment added by Grieve. Given the lack of support generally for May’s administration, the options available are quite limited.
A ‘No deal’ Brexit
Although constantly touted as a legitimate option throughout our negotiating period (no deal is better than a bad deal, if you recall) the likelihood of the UK crashing out of the EU without a deal is next to zero. There is already cross-party support for preventing that outcome at all costs, and Grieve’s amendment makes that even more likely.
As fanatical as certain Brexit faction have become over leaving, the majority are aware of the significant repercussions of leaving without any deal in place. The immediate reintroduction of customs checks at the border will cripple manufacturing industries, and deprive the country of medical supplies, as well as food and water. All treaties previously negotiated will become void, meaning any trade agreements we had access to as part of the EU aren’t available to us. There is no way we will ever be able to negotiate them on the same terms on our own, because why would any country give the same terms to the UK as a collective of 28 countries? Even agreements such as air traffic control will come to an immediate end.
A terrible outcome, to be avoided at all costs.
A general election
As a result of the Fixed-term Parliaments Act of 2011, PM’s can no longer ask the Queen is to dissolve Parliament and call a general election whenever they feel like it. Instead, they are held on fixed dates every five years. There are now only two ways an election can be held outside of those dates:
If a motion for general election is agreed by at least two-thirds of the whole house; or
If a motion of no confidence is passed and no alternative government is confirmed by the Commons within 14 days.
Labour’s prefered outcome is a general election, although it is not immediately clear as to why. The party leadership has been openly eurosceptic in the past, and offered little more than platitudes about how a Labour government would able to negotiate a better deal, without even specifying what the deal would include. Corbyn has managed to sit on the fence for two years, commenting on the shambolic nature of government but not providing a legitimate alternative. It’s very possible he is letting the government oversee their own execution, before springing into action, but given how the media are, at best, lukewarm to him, he would benefit from providing definitive answers.
The likelihood of a general election is relatively small, given that the Conservatives are still the largest party in the Commons (although without a majority) and they will surely know that an election will see their party get absolutely hammered. However, it might not be up to them, as if May loses the confidence of the House the government could collapse anyway.
A general election might bring fresh voices to proceedings, but doesn’t immediately resolve the deadlock.
A second referendum
Increasingly, a second referendum is becoming a viable option. With campaigns happening across the country, overseen by The People’s Vote, there is increased appetite among both the public and politicians to open the question back out to the public now the realities of Brexit have been revealed.
A referendum would probably be the safest option politically to try and break the deadlock… as long as there was consensus over what the ballot options should be. Ideally, the options would just be ‘support the negotiated withdrawal deal’ or ‘stay in the EU’, but Leave voters will view this as an ultimate betrayal, despite the continued warnings of the risks a no-deal Brexit would present.
It should be stated that a second referendum is in no way an affront to democracy. Firstly, the referendum was only advisory, and the government was not required to even act upon it. Secondly, what Leave promised has since proven to be completely at odds with the political reality, and now that has been exposed the public should be given the option to vote on what is actually available.
Finally, and perhaps more importantly, given the vagueness of the referendum question, and ballot options presented, is it not sensible to ask the people whether or not this was what they wanted? We have heard dozens of proposed approaches to Brexit, each with their own economic impacts. The one we have managed to negotiate certainly does’t appear to appease anyone, so should we not get a definitive answer from the people about whether this is what they voted for?
Renegotiation with the EU
If the deal gets voted down, there is every possibility that Theresa May will go back to Brussels to try and make the deal more palatable to the public and MP’s. Both May and European leaders have repeatedly said that the deal negotiated is the best available, and that seems likely given the EU’s desire to retain their four freedoms, and the absolute refusal to consider any deal that leads to a hard border on the island of Ireland.
However, both parties are keen to see a deal struck (although admittedly the UK is in the weaker negotiating position) so there may be a small amount of room for maneuver.
I can’t see anything substantially changing, and given that we’ve been frozen out of Galileo, have had to grant Spain a say on any future deal involving Gibraltar, and have to respect the terms of the Good Friday Agreement, it’s hard to believe we will successfully negotiate anything more advantageous for the UK.
File this under improbable.
Brexit gets cancelled
With a decision from the European Court of Justice expected in the next few days that states that the UK can unilaterally revoke Article 50, staying in the EU from a legal standpoint would not be difficult. Parliament would have to vote on it, but again, legally that is probably all that is required.
Although legally quite a simplistic decision, politically it will a real challenge. There would be immediate backlash from ardent leavers, and certain sections of the media will undoubtedly whip up fury over a ‘betrayal’ of democracy. Indeed, they have already started. But, the short-term political disruption would be worth the long-term political and economical gains.
With the USA currently adopting a protectionist policy, the UK cannot rely on it for trade deals, and Trump’s questionable foreign policy means we can’t look to it for support. The world is becoming more centered around cooperation, and with countries like China and Russia showing an increased willingness to interfere in state affairs, being part of political institutions that can provide strong responses is better for everyone.
A way to (partially) mitigate the political uproar would be to include staying in the EU as an option on a People’s Vote. That way, MP’s who fear electoral retribution will be able to say they are following the instruction of the people.
There are options out of this mess, but all will require vision, creativity, and above all else, courage.