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Westminster has less power over Brexit than it may think

Larissa Brunner

Date: 11/12/2018

Faced with a near-certain defeat in parliament, Prime Minister Theresa May has postponed sine die the ‘meaningful vote’ on her Brexit deal that was originally scheduled for today. The bigger story, however, is that the UK parliament seized control of the Brexit process from the government on 4 December, when it approved an amendment giving MPs greater power over what happens if Westminster were to reject May’s deal with the EU.

Much of the discontent focuses on the backstop for the Irish border. Critics of the arrangement argue that it could trap the UK indefinitely (which from the EU’s perspective is a necessary provision as a time-limited arrangement would not be a backstop) and limit the UK’s ability to conclude free trade agreements with third countries. May has pledged to return to Brussels to hold emergency talks on possible changes to the backstop.

Such a desperate move could ultimately harm her. The EU will not renegotiate in principle, and certainly not on this issue. From Brussels’ perspective, the withdrawal agreement is the best workable deal given the UK's red lines and the need to respect the integrity of the Single Market. Making further concessions on the backstop would risk undermining it. The most that May can hope for are cosmetic changes to the political declaration on the future relationship or some accompanying declarations. But announcing further talks raises expectations that will inevitably be dashed. May will not return with a significantly better deal than what is already on the table.

If the withdrawal agreement and political declaration were to be voted down in parliament, the government would have 21 days to put forward a motion setting out its next steps, which MPs will have the power to amend. While any parliamentary amendments would not be legally binding, politically the UK government would find it hard to ignore. Meanwhile, what is often missed in the UK debate is that finding a way forward requires support from the EU – which may or may not be forthcoming. Ultimately, the UK faces a three-way choice: remain in the EU, take the deal, or leave with no deal.

Five scenarios

In case Westminster rejects May's deal, there are five scenarios, ranked from the least to most extreme change to the baseline scenario (May’s deal is accepted).

First, MPs could request the government to shift towards a ‘Norway plus’ model. This option appears unlikely, given that it comes with obligations such as Freedom of Movement, that most Conservative and Labour MPs would find hard to accept.

Such a shift would affect only the legally non-binding political declaration, not the withdrawal agreement which focuses on the separation. From a legal point of view, agreeing to pursue ‘Norway plus’ would not firmly commit the UK or the EU to anything. The UK could still fall off a cliff edge at the end of the transition period if London and Brussels failed to reach an agreement on their long-term relationship in time. Forcing the government to commit to a ‘Norway plus’ model would be a symbolic victory for Remainers and soft Brexiteers that could potentially help May get the withdrawal agreement through parliament. It would not offer any guarantee regarding the future relationship, and therefore it would not prevent the need for the Irish backstop.

Second, MPs could call for a ‘people’s vote’, which the UCL Constitution Unit estimates would take up to 22 weeks to organise, implying an extension to the Article 50 period that requires unanimous approval of the European Council. While the EU may have little reason to object to a one- or two-month extension, it might be less happy to delay Brexit until after the European elections in May without evidence of a broad shift towards continued EU membership in the UK. However, it would be politically difficult for the European Council to deny London a request to give it enough time to hold a second referendum, as long as ‘remain’ vs ‘May's deal’ were both on the ballot paper. The largest obstacle to a second referendum is domestic opposition.

Alternatively, a ‘people’s vote’ could be held after the UK has left the EU. However, if the UK then decided to reapply for EU membership, it would likely lose its benefits including the budget rebate and possibly even the opt-out of the Euro. Convincing the UK public to re-join the EU on worse terms than before would be almost impossible.

Third, the UK could revoke Article 50. While the ECJ has ruled that the UK can do so unilaterally if based on an unequivocal and unconditional decision to remain, using the threat of revoking Article 50 and triggering it again as a negotiating ploy or an attempt to buy time is not an option.  

Fourth, May could step down, triggering a leadership contest. The government could also fall if the Democratic Unionist Party were to vote against it in a no-confidence vote, leading to a general election. In both cases, whoever emerges as new prime minister would fundamentally face the same choices as May does now. The EU’s reaction would depend on the plans of the new government. If it wanted to hold a second referendum, the EU could agree to an extension of Article 50.

Fifth, it is often argued that MPs could rule out a no deal Brexit as there is no majority for this outcome in parliament. However, this argument is misleading. No deal is the default; it will happen if nothing else is agreed. It does not require approval from MPs. A negatively phrased motion instructing the government to avoid no deal would not be actionable as it would not tell the government what to do instead. The only way to prevent a no deal Brexit is to agree to an alternative.

Voting May's deal

If MPs realise how constrained their choices are, they might ultimately vote for May's deal. If they do not, and if no alternative is on the table, the risk of no deal increases, regardless of what parliament does to rule it out.


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