Note: This article was first posted on 23 March 2019. A lot has happened since then, and for the latest coverage, visit our Brexit Voicebox.
30/10/19: A general election has been called. More details can be found here.
On 12 March I wrote that the week could be the defining moment in Brexit, but in true Brexit fashion it has continued to limp - haphazardly and unpredictably - in a direction undesirable for all involved. We are now in a situation where our deadline for departure has been slightly extended, but the EU has made it clear that change will have to come from our side, or not at all.
As hundreds of thousands of people take to the streets to march for a second referendum, and the signature count on a petition for the same issue currently sits at nearly 4 million, I thought we should look at how we arrived at this juncture, and the routes available to us going forwards.
To understand how we got to this situation, it’s crucial to understand the steps that led to this point.
To recap, on 11 March Theresa May did a last minute dash to Strausberg to try and get further reassurances on her withdrawal agreement. In particular, she wanted further legal wording around the Irish backstop. Those further assurances were offered, but didn’t actually change the agreement at all, and the risk of being trapped in the backstop indefinitely was still present - a fact confirmed by the attorney general. That led to a predictable second defeat of her deal on 12 March by a margin of 149 votes.
On 13 March, Parliament voted to reject the UK leaving the EU without a deal. This was a non-binding vote that simply indicated the will of the House. Without a deal being agreed, it was still the case that the UK would crash out of the EU.
On 14 March, the House voted 412-202 in favour of extending Article 50. Again, it wasn’t a binding resolution, and required the EU to agree to the request.
It looked as though Theresa May was going to instead put the deal to Parliament again this week (w/c 18 March) but the decision was preemptively blocked by the Speaker John Bercow. Citing parliamentary convention, the Speaker stated that it was not possible to present the same motion or amendment twice in a single session, and that there would be no further vote on the agreement unless there were substantial changes. This sparked a lot of fierce debate about whether he had overreached his remit.
Fact check: Mr Bercow was completely within his right to inform the government that they could not repeatedly ask Parliament to vote on the same bill. It is his job to speak on behalf of Parliament, and ensure that the government respects the lower chamber.
The declaration caught the government by surprise, and without the option to repeatedly present the same bill into the chamber, Theresa May wrote to the EU leaders on 19 March asking for an extension until 30 June.
However, in addition to formally requesting a short extension, May made a televised statement, saying that she was on our side, telling us how we felt, and squarely placing the blame at Parliament's feet. Here are some extracts:
You're tired of the infighting, you're tired of the political games and the arcane procedural rows, tired of MPs talking about nothing else but Brexit when you have real concerns about our children's schools, our National Health Service, knife crime.
You want this stage of the Brexit process to be over and done with. I agree. I am on your side.
So far, Parliament has done everything possible to avoid making a choice.
Motion after motion and amendment after amendment has been tabled without Parliament ever deciding what it wants.
All MPs have been willing to say is what they do not want.”
As far as decisions go, this was one of the more ill-advised. The government is barely in control, the mood within the Conservative Party is already dangerously low, and Parliament as a whole (both Remain and Leave camps) are furious at the mis-management of Brexit. Given that she needed to convince an additional 75 MP’s to back her universally loathed deal, pointing the finger is not the way to win support.
N.B.: Whatever your opinion of Brexit, it is never acceptable to threaten or send death threats to MP’s. It is abhorrent that Anna Soubry feels unable to go home because of the death threats she has received as a result of her support for Remain, and others are having to tolerate violent messages. After the murder of Jo Cox during the referendum campaign, we should all be aware of the very real risk that incendiary language causes, and Theresa May’s inflammatory language is wholly inappropriate.
The Brexit Summit
On Thursday, Theresa May met with EU leaders to outline her plans and justify the extension. Unimpressed with what she had offered, the EU27 deliberated for eight hours over what they should do, and just before midnight went back to May with a new offer.
The request to leave the EU by 30 June was rejected and instead, they have given her a three week reprieve. Should Theresa May somehow manage to get her deal through Parliament next week, they will grant an extension up un 22 May. However, should she fail to get the deal passed - which is widely expected - then she will only have until 12 April to come up with a new proposal or the UK crashes out without a deal.
Why variable dates?
The main reason is because the UK staying beyond 22 May would create legal issues for the EU. There are EU Parliament elections this year, and if the UK has not announced their intention to participate in those elections by 13 April (the deadline to do so), then they have to be out before the elections are held on 23 May.
The EU has also been pretty clever in their approach. By giving two extension dates they have ensured that the decision (and the blame) is squarely at the UK’s feet. Had they rejected the extension outright, they would be seen as forcing a no-deal Brexit. Likewise a long extension (in addition to creating legal issues) might have led to accusations of trying to trap the UK in.
The dual date approach means that it is now down to Theresa May to make Parliament accept her deal or come back to the EU with a new one. A more conspiratorial view would be to say that the EU offered these three weeks as a way to sharpen the minds of MPs and encourage them to take control of proceedings, either through a vote of no confidence or by replacing May as leader. It is no secret that EU leaders are exceptionally frustrated by May and her evasive and belligerent approach, and might be interested in talking to a fresh face - not that they could ever say as much.
So what now?
I’m not being facetious when I say “who knows!”
The first thing that has to happen is that Parliament needs to vote on a “statutory instrument” that will amend the European Union (Withdrawal) Act 2018, as the 31 March is currently enshrined in law as the date of departure, whereby all treaties and agreements with the EU become void.
This is likely to pass without issue.
Meaningful vote #3
The next thing to happen will be that Theresa May will once again present her withdrawal agreement to the house. It is highly unlikely that John Bercow will block the motion, given that the date of withdrawal has now changed. However, the date is all that has changed, and given May’s ill-judged and poorly received address to the public, she has likely burned a lot of good-will she had gained in the second vote. However, if she does manage to get the deal through Parliament, then the UK will leave on 22 May, and the next few months will be drawing up and voting on the necessary legislation to implement said deal.
Prediction: The deal will fail to pass.
If my prediction comes true - a near certainty in situation defined by uncertainty - then it truly is anyone’s guess.
The current expectation is that a series of indicative votes will be held, where MPs will be able to express their preferences on the way forward. As many as six are current contenders (in addition to May’s deal) although more might be added. These are:
revoking Article 50 and cancelling Brexit
the PM's deal plus a customs union
the PM's deal plus both a customs union and single market membership
a Canada-style free trade agreement
leaving the EU without a deal.
This will be different from normal parliamentary votes in that the options will all be voted for at the same time. MPs will be handed a ballot and will be required to mark their support for or against each choice. This will limit tactical voting, and it is hoped that it will give some indication for a plan that parliament could support and, crucially, could be passed.
However, these indicative votes are non-binding, and ministers won’t be required to pursue any of the outcomes. It would be foolish to ignore the will of the house though, as it has demonstrated repeatedly that it won’t accept a bad deal.
Vote of no confidence
A more dramatic option would be a vote of no confidence.
Under the Fixed-Term Parliament Act, Parliament runs for five years and can only be dissolved by a successful vote of no confidence, or a two-thirds majority vote.
Theresa May secured a two-thirds vote to call a general election in 2017, where she then lost her parliamentary majority. After the first catastrophic defeat of May’s deal in January, Jeremy Corbyn called for a vote of no confidence in the government, which it survived by just 19 votes.
However, unlike the Conservative Party leadership, there is no limit to how many challenges can be made, and it is not outside the realms of possibility that the Labour leadership issues a second VONC in the government.
The difference this time would be that Theresa May is in a significantly weaker position than before. She deal has been defeated multiple times, she has pitted herself against Parliament, and the Conservative Party have grown annoyed. It’s very possible that a number of her own MPs will support a VONC as a means of removing her, as under the terms of the Act there is 14 days whereby a new government can be formed to try and win the support of the House. If that fails, then Parliament is dissolved and a general election is called.
May stands down
This is very ‘pie in the sky’ thinking, especially as she has already stated that she will not stand down to resolve the Brexit impasse, but as we’ve seen repeatedly, May can change her mind… Unless it’s about the deal. There is every chance that should her deal get voted down a third time, she will decide to stand down and let someone else try. Alternatively, and possibly more likely, she will be forced to stand down as an open revolt of Conservative MPs breaks out. As I’ve said, the rumblings of discontent are only growing in size, especially as donations to the Conservative Party are slowing.
This isn’t a likely option, but nothing is off the table.
UK crashes out of the EU
Parliament has voted against a no-deal, but as explained above, that vote was purely indicative, and unless a deal is agreed (or Article 50 is revoked) then the only option available is to crash out of the EU without a deal.
I would like to say that such an option is unlikely, given the opposition to the idea shown in Parliament, but with time fast running out there is very little to prevent that happening unless the government changes course - or changes.
The next three weeks are going to be absolutely crucial to the country. If we don’t secure a deal, then no-deal is the only option, and with it will come untold damage to the economy, our way of living, and our diplomatic standing in the world. It has to be avoided at all costs, and Parliament has a duty to prevent that from happening.
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