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There are four Brexit options and Remain is the least likely

December 1st, 2018

Changing course now will take a lot more than parliamentary motions

Brexit ignorancis is a nasty little disease. Symptoms include the sufferer becoming breathless, exhibiting undue certainty in their pronouncements, asserting without evidence, disregarding evidence that’s inconvenient, suffering a loss of hearing and developing a fondness for tweed. Unfortunately, not only do mild cases not develop immunity but they leave the victim more prone to further, and more serious bouts.

Those working at one remove from the action are inevitably less likely to fall victim than the likes of politicians, activists, lobbyists or columnists – but they are still susceptible. One such who caught an unexpected dose yesterday was the BBC’s Laura Kuenssberg, who tweeted yesterday that Hilary Benn’s tabled amendment would prevent a No Deal outcome. It wouldn’t – it can’t – and she should know better.

It’s therefore worth reviewing the four possible outcomes, what the routes are to those destinations, and, consequently, how likely they are.

Before doing so though, we should note that a second referendum, replacing the PM, and a general election are not Brexit outcomes: they’re processes, not policies. Certainly, they’re processes that affect the likelihoods of the choices Britain has before it, but they’re still means to those ends, not ends in themselves.

May’s Deal

This is by far the most straightforward process because it’s what the UK and EU legislative and treaty framework is designed to enable. All (!) that’s required, now that the EU and UK negotiating teams have signed off a text and the European Council has agreed it, is for the European and UK parliaments to ratify. These requirements are set out partly in Article 50(2) of the Lisbon Treaty:

… [the Agreement] shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

And Section 13(1)(b) of the European Union (Withdrawal) Act 2018:

The withdrawal agreement may be ratified only if –
… the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown

So far, so simple. There are other requirements in the Withdrawal Act but they’re essentially procedural. As far as the politics goes, it’s the Commons where the trouble lies.

Fortunately, there’s no requirement that the deal be passed at the first time of asking. The Commons can vote as many times as is necessary to satisfy the clause quoted above. There’s also no deadline, though other practicalities might make it a bit difficult signing the deal off in March.

What there is, is a requirement that if the Commons votes down the motion, the government must, within 21 days, make a statement on how it intends to proceed in relation to withdrawal negotiations. Given that the vote is on December 11, in practice that means that the government would (will) need to make that statement within a week – any longer runs into Christmas. In fact, if she has any sense, the PM will make the statement immediately after the result of the vote is announced. Only that regains the momentum for the government. And that takes us to the second option …

A different deal

The EU has been very clear that they do not want to reopen the Brexit deal, which makes perfect sense. Why would you give the people you’ve been negotiating with an incentive to come back and ask for more? However, if the Commons does vote the deal down, Theresa May could well decide that the best next step is to go back to Brussels and seek to address the points that caused the vote to fail. Given that a No Deal scenario is potentially as bad, if not worse, for Ireland than it is for Britain, the EU may well decide at that point that it could countenance some superficial changes and clarifications. The process, however, would remain the same, with the various players signing off in the same way as above.

No Brexit – i.e. Remain after all

More loose talk has been given to the prospect of remaining than to any other outcome. Contrary to what Ms Kuenssberg tweeted, it’d take a lot more than a parliamentary motion.

In truth, we don’t quite know what the process to remain is – or indeed if there even is a process. That question turns on whether Article 50 is revocable. That’s a question the CJEU has been asked to adjudicate on and its answer will clarify matters greatly. It should, if it decides that Article 50 notification can be withdrawn, also determine whether it can be done unilaterally or whether it’d need the consent of the EU; and if it does need that consent, what would constitute it.

That, however, is just the position from the EU side. There’s also the matter of UK law. (There is also the matter of UK politics but let’s address that separately, and later). The reason why a parliamentary motion cannot instruct the government to revoke notification and enable the UK to remain in the EU is that the Withdrawal Act also states in Section 1:

The European Communities Act 1972 is repealed on exit day.

And in Section 20(1)

“exit day” means 29 March 2019 at 11.00 p.m.

In other words, European law will cease to have effect in the UK after 29 March next year (that date can be amended by a minister but only in the context of a different exit date being agreed; it cannot simply be deleted). Even if Britain were able to revoke the notice, the UK’s legal framework for EU membership would cease to operate.

And there’s another problem. Section 1(1) of the European Union (Notification of Withdrawal) Act 2017 states that:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

It doesn’t say anything about the PM having the power to withdraw that notification. Indeed, the clause above is virtually the entire Act. By a rather ironic twist of fate, the same logic that required the legislation in the first place presumably now prevents the government from using executive powers to annul the effect of that Act.

Put simply, if Britain is to remain – if it is allowed to remain and chooses by whatever process to do so – a new Act of Parliament will be needed. This is not something that parliament can force on the government against its will, and certainly not in the less than four months left. Votes on parliamentary motions might bring moral force but they can have no legal power because the government simply no longer has the authority to keep the UK in the EU, hence a parliamentary motion cannot direct it to.

No Deal

Which leaves No Deal as the fourth and final outcome, for which the process is simple: it’s what happens if none of the three above do.

Conclusion

Talk of replacing the PM, of general elections and of referendums is not just displacement activity. It certainly makes sense, if you want the UK to remain in the EU at this late stage, to gain the moral authority of a public endorsement for that opinion, to override the earlier endorsement of Leave.

Time, however, is ticking. The legislation is in place for Deal and No Deal; it is not in place for Remain – which is another reason why a referendum would be a useful device, much more so than a general election. As a referendum also needs legislation, relevant clauses to amend or repeal those other Acts getting in the way of Remain could be (in fact, would have to be) included, as well as the consent of the EU to the necessary Article 50 extension. By contrast, a general election (or change of PM) could take up perhaps seven of the 17 weeks remaining without altering the legislative architecture. And then what? A referendum straight away? You can be sure how Brenda from Bristol will receive that news.

However, for as long as Theresa May remains PM, I don’t believe she’ll want to go anywhere near Remain. Opposition MPs might demand it but to deliver on that option would require legislation and almost certainly a referendum – and in a referendum, it’s very unlikely that an option supported reluctantly by a few will defeat choices vigorously supported by an animated many. That might result in Remain winning but it’s far from impossible that No Deal could emerge the victor – and unlike a No Deal drifted into by default for lack of support for any alternative, a No Deal mandated by the public could not be escaped from after a few days or weeks of crisis.

For all that Theresa May or Donald Tusk or others might speculate about the possibility of Remain, the reality is that it faces a huge series of procedural and legislative hurdles. The default is still No Deal, unpalatable or even unthinkable as that might be to some. Well, they ought to think about it. Failure to do so would be a new outbreak of Brexit Ignorancis.

David Herdson