Brexit Showdown: Deal, No Deal, No Brexit

Kirsty Hughes | 30 March 2019

© 2018 European Union

European Council president, Donald Tusk, has now called an emergency EU summit on Wednesday 10th April – ahead of the new Brexit day of 12th April. So the UK has just over a week to find a way ahead. Many expect a request for a long extension – but questions abound: what would the extension be for, would Theresa May put in such a request, and will the EU accept it and with what conditions? Without an agreed extension, the UK will face either no deal or revoking Article 50 by the 12th April. Without revocation, no deal will be the default.

On Monday, MPs will once again take over the Commons order paper – and they will aim to take it over for another day beyond Monday too. A range of motions on where next for Brexit – for a further round of indicative votes – will be considered (and which ones are selected for debate and voting will be central).

Even if the Commons finally finds a majority for something – which could be a customs union, a Norway plus Brexit, a people’s vote on any deal or replacing no deal as a default with revoke (all already considered last Wednesday and expected to come up again on Monday, some in new versions), will Theresa May agree to go along with that majority. And even if she did would it be a stable majority – one that could last either through new talks with the EU over the political declaration or all the way through to another referendum perhaps in early autumn. Or if there’s still no majority on Monday, could there be a majority on a third round of voting? Or will the UK’s failing politics and government propel us towards a general election?

Where next?

Faced with this level of uncertainty and range of questions (all indicative of the failure of UK politics), it’s not surprising the EU are now saying they see a no deal Brexit as the most likely outcome, even though MPs have made clear they oppose such an outcome.

But other outcomes look somewhat more likely for now.

A Long Extension: Several outcomes would require the EU to agree to a long extension, perhaps to the end of 2019. If the EU did agree to such an extension, which is not guaranteed, the UK would need to take part in the European Parliament elections, have a clear reason for requesting the extension, and quite probably agree not to intervene in EU decision-making that is focused on new laws or decisions due to come in from the start of 2020 on (or even on key decisions in 2019 such as the new presidents of the Commission and European Council).

While Brexiters have decried the idea of European Parliament elections, these elections could in fact provide a very apt way to have the public debate and expression of opinion on Brexit that is so badly needed – and in elections that are not on a first-past-the-post basis which would help sidestep the fact the two main parties both back Brexit.

It’s also been suggested May could try to bring her thrice-defeated deal back for a fourth time as a run-off with whatever might gain a majority from the next indicative votes (should the speaker allow it). If May’s deal rose from the dead, the UK could even still leave the EU on 22nd May (if the EU would agree to offer that date again and if the implementation bill could get through in that time). But other options might lead to a short extension too. So even the assumption that any extension will be a long one is not certain for now.

General Election: If the Commons fails to find a majority for anything, then it’s possible Theresa May could move towards calling a general election – assuming (as is probable) there would be a two-thirds majority in the Commons for that. May would then ask the EU for an extension so the election could be held and the new government and parliament could then decide what to do about Brexit. An election might solve nothing; it could easily deliver a hung and deadlocked parliament again.

The depth of the UK’s political crisis in many ways calls out for such an election. Yet fears that it will change little may be well-founded. Those fears reflect too the severity of the crisis while also reflecting the deep splits in the two main parties and the lack of an adequate political voice for the remain majority that now exists across the UK.

Revoke Article 50: This option has rapidly gained public and political support in the last few weeks but whether MPs will move to back it in sufficient numbers to make it the default is an open question. The new motion on this, led again by Joanna Cherry, clearly aims to make this dramatic option more palatable to some MPs by stating it will only come up if the EU refuses a long extension and a no deal outcome is again voted down in the Commons. If this passed, it would show the Commons had finally started to come to its senses.

A Customs Union and Brexit on 22nd May: Ken Clarke’s proposal of a customs union came the closest to getting a majority last week and many are wondering if more MPs, both Tory and Labour, might back it on Monday. The SNP abstained on the motion and may do so again – since it neither includes a people’s vote nor constitutes a ‘soft’ Brexit compromise that the Scottish government has itself suggested in the past.

A permanent customs union is, effectively, anyway the implication of the backstop for Northern Ireland included in the withdrawal agreement – at least until such time as unlikely technological and other measures could supersede it (in the Brexiters’ unicorn jargon). But May has been keen to deny her deal means a permanent customs union not least as it would split her party even more. And Corbyn has played along with her denial or he would have little excuse not to vote for her deal.

So if the customs union motion got over the line to a majority, the central political question is whether May would make a major policy and political shift and accept it. If she did, the UK might be looking at leaving the EU rather soon, perhaps even on 22nd May after all. This week Michel Barnier said that a customs union could be included into the political declaration in 48 hours. Indeed, it wouldn’t be beyond the bounds of imagination to think his team already have such a text ready to go.

So rather than a long delay, success for a customs union motion that was accepted by May, could mean a rapid renegotiation with the EU and a renewed offer of a 22nd May Brexit date. Whether amidst the turmoil that such a move would trigger in the Tory party and quite likely in Labour too, the majority (probably not a large one) for a customs union could survive to drive through the withdrawal agreement implementation bill is an open question. But it’s one scenario.

If the implementation bill didn’t go through, there would be chaos – Article 50 could still be revoked, even if that were later than 12th April. But it would leave the UK (and possibly the entire European Parliament) contravening EU law by not having held European Parliament elections on time.

A People’s Vote/Confirmatory Referendum: This option got most votes last week but the key question here is whether it will get to a majority without being linked to a specific deal – e.g. ‘a custom’s union and a people’s vote’, ‘May’s three-times rejected deal and a people’s vote’ etc. And if it did, would May go along with that – in the face of deep opposition from her party. Or would she prefer to call an election instead?

If the Commons has a majority for a people’s vote, might that majority be large and stable enough to form a temporary government of national unity to see another referendum through and to forestall an election? It’s quite hard to imagine – as it would surely require Corbyn to go along with such an outcome. Corbyn of course has yet to even support a confirmatory referendum having a remain option – and having remain on the ballot paper was also not included in last week’s confirmatory vote motion (to maximise support for it). Corbyn also told Channel four news this weekend that his election policy on Brexit (if there’s an election) would be to put forward a customs union and (unspecified) alignment with the EU’s single market – and include the Labour policy that there should be a public vote to approve that policy (which sidesteps, deliberately, the question of whether such a public vote would include a remain option).

Given both Corbyn and May’s positions, it’s hard to envisage a route to another referendum, with remain on the ballot paper, out of the indicative votes process, unless an unlikely temporary government of national unity is formed – and negotiates a long extension with the EU.

Common Market 2.0: This option could also be considered again on Monday as proposed by Nick Boles. This ‘soft’ Brexit motion is a curious beast. It calls on the EU to amend the political declaration to say that the UK will join EFTA – with a derogation on Article 56/3 of the EFTA convention (treaty) so that the UK could have a ‘customs arrangement’ with the EU. But the EFTA countries – Norway, Switzerland, Iceland and Liechtenstein – are not in the EU and the EU cannot speak for them so it’s a strange demand.

The motion also calls on the EU to acknowledge in a joint legal instrument that Common Market 2.0 once fully implemented would fully supersede the backstop for Northern Ireland (something a customs union on its own wouldn’t do). But this would require agreements too on agriculture and fisheries. The motion suggests there will be an ‘agri-food’ trade agreement that presumably is intended to somehow deal with this.

Apart from all the substantive problems such a ‘soft’ Brexit would create – making the UK a passive, rule-taker and creating a major democratic deficit – the EU is unlikely to simply give up the backstop through a legal instrument at this point. The proponents of the various types of ‘soft’ Brexit – from ‘Norway for now’ to ‘Norway plus’ to common market 2.0 – have periodically emphasised it’s possible to leave the European Economic Area with 12 months notice. So the EU would surely demand as part of such a deal, that in that case (of giving 12 months notice) the backstop would kick back in.

Uncertainty Reigns in a Crucial Week

Time is running out. The UK’s political crisis looks ever deeper and more unstable – with serious political leadership vital but lacking in both the main parties. The only serious choice that the UK can now make that doesn’t depend on the EU’s agreement (and any related conditions) is to revoke Article 50 before 12th April. No deal could also happen without EU agreement but it would be a deeply damaging choice (to the UK and to EU member states not least Ireland) and the UK would soon be back at the EU’s door desperately demanding talks and help from an even more powerful and appalled (by the UK) EU.

For now, the motions for the next round of indicative votes on Monday (including some Brexiter ones) do not show much sign of compromise. There are no motions that combine a customs union or single market option with a people’s vote (and remain on the ballot paper). Yet such types of combined motions would seem a likely route to a larger Commons majority – and that would represent a genuine compromise. Perhaps such motions will appear if indicative voting continues on a third day.

But the Commons and government must decide where next on Brexit – and their requests to the EU (holding most of the power and almost all the cards) – by a week on Monday. Whether that decision is an election, a customs union (or single market ‘soft’ Brexit), a people’s vote, revocation of Article 50 or no deal and whether the UK might request a long extension or try to get a customs union Brexit through by 22nd May all remain as possibilities.

The best, least damaging route – politically and economically – would be to stay in the EU. The best way to do that democratically would be to take it back to the public in another referendum. But if time runs out and no deal looms, the only rational route would be to revoke Article 50.

What is clear is that, whichever way it goes next, the state of the UK’s politics suggests any route ahead will be difficult, contested and quite likely unstable. Mending the UK’s damaged politics and divided society – and rebuilding its international reputation currently in tatters – will take many years and more likely decades. If Brexit goes ahead, the damage will be much deeper and the crisis may get worse and for longer before it gets better in any way – and Brexit itself both as a process and debate within the UK, and as a negotiation with the EU, will continue to dominate our politics. And there will be knock-on impacts in Scotland and Northern Ireland in terms of constitutional debates. If the UK stays in the EU, there will be a chance to move on. But there will still be huge work to be done to emerge from this crisis and to begin the process of building a modern politics and a fairer society.

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.