The Brexit conflict still remains in deadlock with the clock ticking down

The political deadlock in the UK at Westminster as we reach Christmas seems as solid as ever, with no apparent solution about Brexit on the table except Mrs May’s negotiated deal with the EU, a crash-and-burn no-deal Brexit or a second referendum. It is therefore a good time to assess where we are in relation to this all-consuming Brexit conflict, while other urgent, important or necessary domestic initiatives are on hold. So where do we go from here?

May’s Withdrawal Agreement

The major achievement, if we can call it that, of May’s premiership so far has been to negotiate with the EU a Withdrawal Agreement (WA) on the terms of Brexit, namely citizen rights, a settlement of outstanding debts (£39bn), the border between Northern Ireland and the Irish republic and a transition arrangement to last till Dec 2020, with a 2-year extension available, under which the whole of the UK would temporarily remain in the customs union and single market. The last-mentioned contains an obstacle to the WA being approved by the UK Parliament in order to ratify the WA as a Treaty with the EU, the obstacle being known rather inelegantly as the Backstop. There is also a Political Declaration, without legal force, to cover the planned trade negotiations to come.

The Backstop is a mechanism designed to conserve the Good Friday Agreement (1998) that has brought peace to Northern Ireland and prevent a hard border between northern and southern Ireland. The idea is that in the absence of a trade agreement at the end of the transition Northern Ireland would remain in the customs union and single market.

Opposition to May’s deal

Both the Northern Irish DUP, voting supporters of the Tory minority government, and the hard-Brexit Tory ERG are opposed to the Backstop, the former in particular for creating a potential border with the rest of the UK with regard to the single market while the whole of the UK would have to remain in the customs union. For a further explanation see here. The ERG complain that there would be no real Brexit.

Without getting too much into the detail, one could observe that what May has done is negotiate what might be called a compromise version of Brexit, where some formal alignment with the EU would remain, and this would have the advantage of being much less costly to UK plc. It does however come with strings attached, namely for example continued free movement, observance of EU regulations without a say on them and the continued jurisdiction in the UK of the European Court of Justice.

Mrs May has attempted to obtain Parliamentary approval for this deal, but at the last moment pulled the vote since it was obvious that a cross-party coalition would defeat it. She has now agreed to bring it back for a final vote, the long-promised “meaningful vote”, in the week commencing 14 January 2019. In the meantime she has said she will try to “improve” the departure terms to pacify her critics, even though the EU have refused further negotiations on those terms.

The Parliamentary conflict over May’s deal

Pulling the vote caused a massive outcry in Parliament since people saw it as refusing to allow Parliament to have a say on the WA and thus on the terms of the Treaty. Thus many believed that the Brexit conflict was being kept from resolution and being brought dangerously close to Brexit Day, 29 March 2019, and a car-crash Brexit, leaving without a deal and trading on the dubious WTO terms.

In turn, the postponement has meant that other potential solutions cannot be considered as a way of resolving the impasse.

The core problem in terms of procedure is that the government controls Parliamentary procedure, a way by which its legislation takes priority and can be passed reasonably efficiently. It is for government to introduce legislation and Parliament can then amend it if it so wishes. Normally the government, through the system of Whips and party discipline, can ensure that, assuming a majority, it can get its bills passed. This is now all the more difficult since it lacks a majority on its own and is dependent on the DUP for a legislative majority. While the majority remains intact, there is very little scope for opponents to frustrate or halt what May is doing.

What the opposition can and can’t do

For the opposition to impact these events, it needs to be able to amend the government motion seeking approval of the WA. If no motion is brought to a vote, there is nothing that can be done while that majority is intact.

There are devices available to the opposition, such as a Motion of No Confidence in the government, which if passed would normally by convention lead to the government’s resignation. Under the Fixed Term Parliaments Act, a general election, which is another option, could only occur if a motion for it was passed by a two-thirds majority, or after other possibilities have first been explored. For more details see here.

Labour policy is to seek a general election, but with the parties currently very close in the polls, there is no guarantee that a new Parliament wouldn’t contain the same people and the same problem. Moreover, Labour policy is then to negotiate a different deal with the EU, but as stated the EU is now refusing further negotiations.

However, let us assume that May remains true to her word and brings the WA back for a vote in January, and she appears obliged to do that by 21 January (although some say it needn’t be until 28 March! There are loopholes. See here). It is at present likely that her deal will be defeated by a large margin. Both the ERG, the DUP, Labour and the smaller parties are all saying they will vote against.

What then might happen?

At that point, we enter the realms of the unknown in what is in UK terms an unprecedented situation. Parliament has been deadlocked since the fateful 2017 election, which gives no certainty to any one option except a crash-and-burn Brexit on 29 March. There are several options:

  1. Crash-and-burn Brexit. Almost everybody is against a no-deal Brexit. Almost that is except the ERG who continue to believe, despite the contrary evidence, that this would be good politics in order to pressure the EU into concessions, despite the latter holding all the aces, and because they think that such a Brexit would not be that painful and Britain would soon flourish on the basis of all those free trade deals that Liam Fox has been promising. The ERG however have turned out to not have as much clout as was thought since they failed to unseat May as leader in an MP’s ballot on 12 December, May surviving with a majority of 83. While they are still holding out for a no-deal Brexit there has been suggestions that some may now support May.
  2. Other versions of Brexit. Some MPs have suggested other options such as a Norway-style association with the EU, such as membership of the EEA, but these have not gained much support so far, and have come up against objections such as continued free movement and other such constraints, and both other such countries have objected and the EU is resisting further negotiations as above.
  3. Cancelling or postponing Brexit. May has warned that a failure to agree her deal could mean no Brexit. This can now be done by the UK unilaterally, due to a ECJ ruling on 10 December 2018, and the UK would remain in the EU on present terms. Another option would be to postpone Brexit for a second referendum, which the EU has indicated it would agree to. May and a large proportion of MPs seem committed to Brexit however: “Brexit means Brexit”.
  4. A second referendum. This option has moved much higher up in probability terms as the impasse has lengthened, as a way to escape the trap. Various options have been mooted, such as a vote between crash-and-burn, remain or May’s deal, or between two of those. The People’s Vote campaign has been vociferously urging a 2nd vote for some time. Opponents say variously that this would be “undemocratic”, against “the will of the people” stated in the 2016 referendum, and/or likely to produce further polarisation, extremism and instability
  5. A general election. Seeking a general election is official Labour policy, as stated above, but it comes with the disadvantages also explained above, that we might be no further forward. One uniting force amongst Tories however is the strong fear of the hard left Labour leader Jeremy Corbyn as PM.
  6. May’s Deal. Or we come back to May’s deal. It does have its supporters and it has been suggested that that support could grow, despite all the odds at present, as we get closer to the cliff edge. This is where May’s seeming procrastination has, for her, some merit, if that is her tactic. The closer we get to D-day, the more the relative calm of a semi-departure will appeal compared to the other greater perceived dangers such as a crash-and-burn Brexit, a general election, a 2nd referendum or even the cancellation of Brexit.

The threat of instability

This is an unprecedented national crisis. While things continue as they are, and we edge closer to the cliff-edge, the more businesses will conclude that the UK economy is too risky and will shift business and investment to the continent, and the more likely a full-blown Sterling crisis will occur. The one major factor precipitating a change of course has been a Sterling crisis. In the end, government relies on financing debt to pay its way and when it can no longer do that it has to change direction to stay afloat. This could be one big reason to halt or reverse Brexit.

Another is the instability that could come with the disruptions that appear to be possible. Government in the end relies on the voluntary cooperation of people who think that obeying the law is a higher principle than taking the law into their own hands. Yet there are plenty of examples around that show that apparently stable governments have been forced into humiliating retreats by popular unrest.

This might be a very pessimistic reading of possibilities. In the end we are reliant on a strong political culture that believes in the rule of law and the constitutional ways of proceeding. However, in so proceeding, we must at times wonder still if our very democracy is in danger under the sheer pressure of events. Those seeking political change are potentially playing with fire.

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