The Endless Uncertainties of Brexit

Kirsty Hughes | 5 March 2019

© 2018 European Union

Time is running short but uncertainty still reigns. And wherever Brexit goes next, uncertainty will remain a dominant feature.

Political manoeuvrings continue. Theresa May’s strategy appears clear: to get a bit of legal cover that allows attorney general Geoffrey Cox to change his legal advice on whether the backstop is, in some way, temporary. How this might be achieved given that the EU will not agree a unilateral exit mechanism or back down from the backstop being indefinite is unclear but there are suggestions of some form of arbitration mechanism.

Whether the ERG Brexiters will then back May’s deal, on the advice of their own new group of eight lawyers that they’ve formed, is an open question. And even if most but not all did, along with the DUP, then we are back to counting numbers of potential pro-Brexit Labour rebels who might be needed to get May over the line.

Given that the UK can only get out of the backstop, or not enter it in the first place, by agreeing a future UK-EU relationship that supersedes it ‘in whole or in part’, it’s clear that that future trade (and security) deal must operate effectively like a customs union. The only way the UK could have a harder Brexit via a Canada-style trade deal instead would be if Northern Ireland remained in the backstop and the rest of the UK left, creating a much harder Northern Ireland-Britain border down the Irish Sea. The Tory Brexiters’ insistent focus on getting out of the backstop appears not to recognise this basic point.

If May’s deal did pass, there would need to be a short Article 50 extension to allow time for Westminster to pass the Withdrawal Agreement Implementation bill. But if the vote on her deal was very close, it can’t be guaranteed that that bill will pass smoothly. Or there could be an attempt to insert an amendment to the bill requiring a people’s vote on the deal. That would require EU agreement to extend Article 50 for longer to allow such a vote.

Alternatively, the Kyle-Wilson amendment that would pass May’s deal subject to a ‘confirmatory’ referendum might pass next week. The text of this amendment has still not surfaced. The amendment will surely be put forward in a form that Corbyn can support – and it seems that Labour is still looking for a form of the amendment that doesn’t require Labour to support May’s deal. There’s also a question of whether the amendment is clear that a referendum must have remain on the ballot paper or leaves that to a later point (which could affect who will vote for it). Whether there will be enough votes for it to pass looks somewhat doubtful. It’s again a question of counting Labour rebels who won’t support another EU referendum despite Labour’s (not entirely clear) policy shift (and an anticipated Labour whip on such an amendment) and Tory rebels who might back the amendment.

And SNP votes will be crucial here too. It’s hard to see the SNP voting for, or even abstaining on, May’s deal even with a confirmatory referendum – nor is that ‘confirmatory’ language helpful for a party that does not want to set precedents ahead of any second independence referendum for having a further vote on any independence divorce deal. But if the Kyle-Wilson amendment doesn’t come in a form that passes May’s deal before any second vote, then it should be more straightforward for the SNP.

If May’s deal does scrape through, the UK is probably set to leave the EU by June – unless a people’s vote was inserted into the implementation bill. Then there will be a new set of uncertainties ahead as the talks over the future UK-EU relationship start. Constitutional uncertainties will come to the fore too as both Scotland and Northern Ireland take on board the reality of a definite Brexit. Meanwhile, the UK will enter transition as a rule-taker at least until the end of December 2020 but quite likely for longer.

If her deal is passed subject to another vote or held back from passing before another vote i.e. Kyle-Wilson passes, that new referendum would probably not occur until September. If Kyle-Wilson specifies that remain must be an option on the ballot paper – and if the EU agrees to an extension – then it will take to the autumn to know if the UK will remain in the EU after all or if Brexit is happening. More uncertainty.

And we don’t yet know what conditions the EU may impose on a longer Article 50 extension. The UK will need to hold European Parliament elections if there’s a long delay. But the EU may have other conditions for agreeing an extension – possibly including a political agreement of some sort whereby the UK agrees to effectively take a backseat on key decisions on the new presidents of the European Commission and Council. That may not be a good look for those arguing for remain in any second vote.

Then there’s the scenario where May’s deal falls. May has agreed, in that case, to first put a vote on no deal to the Commons, followed by a vote on requesting a short Article 50 extension. No deal is likely to be rejected at that point – though the SNP-led amendment ruling out no deal in all circumstances was rejected on 27th February, so even that cannot be guaranteed. If it is rejected, there will then be a vote on delay. Will May keep control at that point or will the Commons look at amendments to ask for a longer delay or to keep open the option of a second extension of Article 50? May could yet try to keep her deal alive by asking for a one-off extension to May or June, shifting the cliff edge a little.

And how will the EU respond? It might offer a short delay or a much longer one. Either way, it is likely to attach conditions. And the EU27 probably won’t agree their delay offer until their summit on 21-22 March. So it would go right down to the wire ahead of the 29th March as Brexit day.

It’s a measure of the irrational destructiveness of the Brexit process and the UK’s failing politics that uncertainty is continuing down to the wire and quite likely beyond. By the middle of next week, we will know if May’s deal has passed or not and whether it’s passed subject to a people’s vote or not. We should know if the Commons has ruled out a no deal Brexit. And we should know if the Commons or May has requested a delay.

If May’s deal doesn’t pass and a referendum amendment falls too, then the Commons may ask for a delay to avoid no deal. But the EU will look at that request askance and we won’t know their full response and conditions on delay until the 21-22 March summit. Which means the prospect of a no deal Brexit could continue until the last moment. And even if the Commons does pass May’s deal in some form, it’s clear that the UK’s divided, failing politics will stagger on. And deep uncertainties will accompany it. Brexit confusion will continue to reign supreme for some time yet.

Kirsty HughesKirsty Hughes | Twitter

Scottish Centre on European Relations

Dr Kirsty Hughes is Director of the Scottish Centre on European Relations. She is a researcher, writer and commentator on European politics and policy, and she previously worked for a number of leading European think tanks.