On 30 June 2016, a week after the referendum on the UK’s membership of the European Union, EU trade commissioner Cecilia Malmström was interviewed on Newsnight. She made it clear that Brexit would be a two stage process. First the terms of withdrawal would be agreed, and then after exit the future relationship would be settled.
This process was implicit in the wording of article 50. It greatly strengthened the EU’s hand in negotiation as it meant that the UK could not refuse to pay the ‘exit bill’ unless it received X, or Y in the future. We only get to the next stage if we pay the bill.
The process set out two and a half years ago by Ms Malmström has, inevitably, been the one that has been followed. We now have two documents. One is a long 599 page legal document, the Withdrawal Agreement, setting out the terms of exit. The other is a 26 page non-binding political declaration setting out the framework for the future relationship.
The European Union (Withdrawal) Act 2018 sets as a condition of ratification of the Withdrawal Agreement that the Agreement and the Framework are approved by Parliament. This is odd as the only legally significant thing is the Withdrawal Agreement. Neither side is legally bound to anything by the political declaration. The future relationship is still all to be agreed.
Is Remain Possible?
If nothing more happens the United Kingdom will leave the European Union on 29 March 2019 without a deal. The Court of Justice of the European Union has declared that the UK has the unilateral right to revoke its notification of its intention to leave under article 50. (I don’t myself find its reasons remotely convincing, but who now cares as it has clearly strengthened the UK’s position.)
The government cannot revoke art 50 without legislation authorising it to do so. This is because the European Union (Withdrawal) Act 2018 clearly expresses Parliament’s intention to exit the European Union. The government’s prerogative power at international level cannot be used to overturn domestic legislation. (Miller was, in my opinion and that of the dissentients, wrongly decided because notification did not so frustrate the European Communities Act).
Legally, Parliament could pass legislation repealing the Withdrawal Act and requiring the government to revoke article 50 without another referendum. Politically this is, in my opinion, inconceivable under any circumstances (there would be a few votes to do so in the face of no deal Brexit but nowhere near enough).
So, politically, legislation requiring a second referendum to take place before Brexit day is required if Remain is to succeed. (A General Election won by a party advocating revoking article 50 would also suffice, but as neither potential governing party favours this it may be discounted). There is no time before March 29 for such a referendum to happen. Brexit day could be delayed if the other member states of the European Union agreed (the UK has no unilateral power of delay). Politically, they would probably look benevolently upon a United Kingdom government request for such delay if the request is made for this purpose, and not for the purpose of reopening the (concluded) negotiations. Under the Withdrawal Act, the government has the power to bring Brexit day under the Act into line with that agreed with the other member state.
However, my judgement is that Eleanor Sharpston (Advocate General to the CJEU) is correct that the latest date any such extension could be agreed for is 2 July 2019. This is because of the European Parliament elections in May, and when that Parliament sits. It will not be acceptable for UK citizens resident in the rest of the European Union to be voting for a Parliament of a Union in which they will not be citizens. It also seems very unlikely at this point that the UK will be running elections for MEPs for the next European Parliament, even if they could be given a foreshortened tenure to end upon Brexit.
Could there be a second referendum between now and July? If there were the political will, the necessary legislation could be passed and the vote organised. But with both the government and the opposition opposed, this seems impossible. The Labour conference Brexit motion simply left the decision for the path forward to the leadership, who clearly do not favour a second referendum. The clock has now been rundown so that even were there to be a dramatic late volte-face by the leadership there is probably insufficient time for the necessary legislation to be passed through a divided Parliament.
So, with great sadness, my view is that Remain is no longer a viable option. There is neither the time nor the political will.
The Withdrawal Agreement
Given the premise that Brexit is now inevitable, what is objectionable about the Withdrawal Agreement (ie if there must be a Brexit, what better agreement could there be)?
The answer from the perspective of the European Research Group is the Irish backstop. In order to guarantee that there is no “hard” border between the north and south of Ireland there need to be no customs checks. This requires that there is a customs union between the north and south. By agreeing to the backstop the UK and the EU have restricted the options for the future relationship. Northern Ireland must remain within a Customs Union with the EU. The great concession by the EU, underplayed by the UK government, was to agree that this applied not just to Northern Ireland but to the UK mainland as well. So, the UK has obtained something inconsistent with Cecilia Malmström’s starting point. It has, at its option, the power to keep all of the UK in a future customs union with the European Union. The Withdrawal Agreement looks like a good deal for the UK given Brexit.
What the UK loses is the ability to impose a border between the north and south of Ireland (it could withdraw the rest of the UK from the Customs Union and impose a border between the mainland and Ireland). It is understandable how those who place no great store by the Good Friday Agreement may wish to oppose this, but it is very hard to understand what the objection of the bulk of Labour MPs and members to guaranteeing the lack of a border in Ireland could be. It is unimaginable what the substantive objection of someone such as Jeremy Corbyn, who has campaigned throughout his adult life for the north to be united with the Republic, could be.
On 2 January My Corbyn gave as his reason for opposing the Withdrawal Agreement that it does not include a “full” Customs Union. This makes no sense. The Customs Union itself will be part of the future relationship: the European Union have made clear from the outset that it will not be agreed until after Brexit. The backstop however guarantees that there will be a customs union with at least Northern Ireland, and that the UK can require that it applies to the entire UK.
Labour’s actual objection is not to the Withdrawal Agreement, with which they have no serious complaint, but to the Tory government that will be negotiating the future relationship. That is, of course, fair enough, but leads to a nasty variant on the Prisoner’s Dilemma.
The Prisoner’s Dilemma
If the premise that Remain is no longer an option is correct, the only paths now open are the Withdrawal Agreement, or Brexit with no agreement. Renegotiating the Withdrawal Agreement is not an option at this stage, and it is unclear what the UK would seek to change in any event (pay less of course, but that isn’t going to be reopened). Unless the agreement is approved by Parliament, the default is no deal Brexit. It matters not a jot that there is no majority that would vote for a no deal Brexit in Parliament. That is the result. So, if the premise is correct, the only way of avoiding no deal is to support the Withdrawal Agreement, the only one that there will ever be.
Given that choice, I am sure that if any vote in Parliament could be done confidentially, the Withdrawal Agreement if it is the only viable alternative would pass with a large margin. There is a minority, including Mr Rees-Mogg who obtained a 2:1 in history, who taking a very long view of 50 years or more claim to be able to perceive that overall benefits will accrue eventually from a ‘no deal’ Brexit. But in the short, medium, and reasonably long term, the economic and other consequences would be so serious that only the minority European Research Group (and not all of them) would back it behind the veil of anonymity.
Unfortunately, there are political costs for many MPs who back “May’s deal”. Those with ambitions within the Tory party (such as Raab and Johnson) will benefit if they oppose any deal, as Tory members prefer a no deal Brexit. Within Labour, the political cost for any MP who chooses to back a Tory deal (or even abstain) looks high as that reduces the chance of bringing down the government.
And so, the impossible seems possible. We might end up with no deal Brexit, even though the actual Withdrawal Agreement we have is the only one we’ll ever have (and is in many ways a good deal). MPs face a choice between the best option now available for which they may well pay a personal political price, or avoiding that personal cost and our leaving with no deal. Oh dear.