Commons’ Brexit Choices Narrowing as Clock Ticks Down

Kirsty Hughes | 8 December 2018

Elizabeth Tower, UK Parliament (Jessica Taylor), CC-BY-NC-2.0

As the clock counts down to Tuesday evening’s vote, and beyond that to 29th March 2019, options are narrowing down even while uncertainty reigns and instability looms. Some suggest the choice is now May’s deal, no Brexit or no deal Brexit. Others focus on whether there could be a parliamentary majority for another referendum versus a ‘Norway plus’ Brexit. And Corbyn continues to bang the drum for his own, ‘not quite Norway plus’ deal and/or an election (while others in his party talk up a referendum).

Five Brexit choices – or only three?

Looking at the main types of Brexit outcome that have some backing in the Commons, there are five main choices:

(1) May’s deal: this is not expected to pass on Tuesday evening. But would she stay, and even try again, as the unstable politics (and economics) after her deal is rejected play out? May’s deal includes a basic customs union backstop and an open future relationship that could be a deeper customs union, a deep free trade deal or even, in fact, a ‘Norway plus’.

Brexiters rejecting this deal object to the backstop and clearly have no faith in their own ability to ensure an open Irish border and an open Irish Sea border without the backstop in a future trade deal. If May’s deal passed, it would mean Brexit on time on 29th March – with the future relationship, beyond the basic backstop customs union, unclear in most ways.

(2) ‘No deal’ Brexit: some ERG Tories would prefer this outcome with all its attendant chaos and damage. The EU27 meanwhile are clear that there is no such thing as a ‘managed no deal’. On their side, they have prepared a few vital unilateral measures though not enough to prevent chaos at least on the UK side. There is no Commons majority for ‘no deal’ Brexit – but it could still happen unless the Commons finds a majority for a feasible outcome.

(3) Canada-style trade deal: some of the Tory Brexiters still claim they want a Canada-style free trade deal. This would only be on offer from the EU if the Withdrawal Agreement passed including the Northern Irish backstop. So a Canada-style deal is already available (in the political declaration) but would require a customs border in the Irish Sea with the backstop kicking in for Northern Ireland – and it would create a hard UK-EU border elsewhere too. There is no majority for this in the Commons. Rationally, any Brexiter wanting Canada should back May’s deal as it allows a Canada outcome. Emotionally and/or for reasons of political ambition, these Brexiters refuse to accept Canada is only available with a Withdrawal Agreement.

(4) ‘Norway Plus’: this would mean staying in either the European Economic Area or, if the three EEA/EFTA countries and EU27 wouldn’t have us in the EEA, in something bespoke but similar together with a deep customs union with the EU. The EU is open to such an outcome – however bizarre they find it that the UK would give up its voice, vote and seat at the table. However, the EU would want to make sure the UK could not be disruptive in any new structures, that there were strong level-playing field conditions, and that there were deals around agriculture and fisheries. This would take time to negotiate.

‘Norway plus’ is in fact possible within the existing political declaration, so those who support that could get it, in theory, by voting for May’s deal. It is, in many ways, ‘Brexit in name only’ but sold by Nick Boles and others as still allowing an eventual shift to a deep free trade deal (to placate the hard Brexiters). It’s not clear that there’s a Commons majority for such an outcome unless some Corbyn-Tory compromise was hammered out for a Corbyn-style ‘not quite Norway plus’ – but it would have to be one the EU would accept too.

The SNP, despite their suggestion that a ‘soft’ Brexit would be the least worst Brexit, may not vote for a Tory-led ‘Norway plus’ that left open a Brexiter aim of eventually leaving that set up. Meanwhile, the EU would probably be open to amending the political declaration to make the Norway plus option clearer. The EU would not though compromise on free movement, state aids or any other Tory or Labour Brexiter wish list.

Depending on timing, the EU may argue that there is no need even to extend Article 50. And so, if Westminster passed such an amended version of May’s deal, the UK would still leave on 29th March 2019.

(5) Another Referendum: the people’s vote campaign and many MPs (including Tory remainers, the SNP, LibDems and some Labour) are arguing for another referendum with remain on the ballot paper. If Labour shifted to support this (a big ‘if’ still given Corbyn’s current positioning), then there could well be a majority in the Commons for another vote, as long as remain is on the ballot paper.

But what would the alternative(s) be on that ballot paper? If May’s deal has been voted down – and perhaps May has gone – then who would argue and campaign in a referendum for that deal (even with the EU insisting it remained the only deal on offer)? The ERG and other Brexiters, having voted against May’s deal, would presumably say their Brexit goals were not represented, would cry foul and not participate in a campaign (and likewise in a referendum on a choice between remain and ‘Norway plus’). Perhaps, a Canada hard Brexit deal could go on the ballot paper – even though this is achievable through May’s deal – and isn’t achievable without the Northern Irish backstop and current Withdrawal Agreement.

Even if the referendum question is sorted out, what government would then run the referendum campaign? Would May stay to defend her deal at the ballot box, and if not, would her replacement do that? If not, and if Westminster had voted for another referendum, those MPs might effectively have to establish an executive/government of national unity to oversee the ballot (assuming a vote of no confidence had passed but the outcome was then such an executive not an election). It’s quite a stretch (as are all outcomes).

The Real Choices

Looking at these five Brexit outcomes, it’s clear that there are, essentially, just three choices: May’s deal (which allows ‘Canada plus hard border in Irish Sea’, or ‘Norway plus’), ‘no deal’ Brexit or staying in the EU (via a referendum).

Any negotiated Brexit, means in reality something very close to the current Withdrawal Agreement. Otherwise, all that is available (apart from no deal) is tweaks to the political declaration. In ignoring this, Brexiters are playing on emotion – and Tory party politics – not the logic of getting to any Brexit. Whether the Tory party will survive without splitting in the coming weeks and months must be doubtful.

At the same time, it is quite extraordinary in many ways, that 2 1/2 years after the Brexit vote, with the Tory government having devoted itself to a Brexit consistent with some (though not all) of May’s red lines, the two options most likely to get majority support in the Commons are either another referendum or a Brexit in name only (though with a substantial democratic deficit – indeed perhaps ‘Norway plus’ should be renamed ‘Giving up sovereignty Brexit’).

Extend or Revoke Article 50?

The unfolding political crisis will intensify if no outcome manages to get a majority in the Commons. There might, at that point, be a majority to ask the EU to extend Article 50. But the EU would be highly reluctant to do so without a substantive reason from the UK for an extension – perhaps an election, perhaps to outline ‘Norway plus’ more (even though it could quite likely be done within the 2 year Article 50 deadline) or to hold another referendum. An extension request because Westminster is in disarray will not cut it with the EU.

And on top of that, since extension of Article 50 requires unanimity, this is not an entirely straightforward process. EU member states – such as France and Spain – may well come with demands (on Gibraltar, or the budget or other items on their wish lists) while they have a moment of maximum leverage. Some see Brussels and France as not particularly keen for the UK to stay in the EU. And while others think the EU27 would grant an extension, Macron’s current political difficulties might merit some brief reflection around de Gaulle’s repeated veto of UK membership in the 1960s.

If the European Court of Justice rules this Monday that the UK can unilaterally withdraw Article 50, then the Commons will have another option on the table: to stay in the EU without having a referendum. Few MPs would back staying in the EU without asking the public in another vote, though some would. And since revoking Article 50 would have to be done in good faith, it could not be used to get round the unanimity rule for extending Article 50. Depending how the political crisis plays out, it would though offer a preferable route to tumbling into a no deal Brexit.

The next few weeks or months could, of course, also see a new Tory leader – and new prime minister – and/or an election. But neither the Conservatives nor Labour are well placed for an election given their deep internal divisions over Brexit. And an election, whatever the result, would not change the Brexit choices above.

Meanwhile, the clock would continue ticking. UK political divisions and instability are unlikely to be resolved by whatever Brexit path we end up on: May’s deal, no deal or no Brexit. But, however divided the parties and however unstable UK politics becomes, the UK’s politicians cannot put the choice off any longer.

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.