5 Developments, 4 Real Options, 3 Red Lines, 2 Court Cases and One Very Significant Amendment- Christmas Reflections on Brexit…

Christmas Reflections on Brexit 

Things continue to be as busy as ever so I’ve yet to fulfil an intention to blog more regularly. But with the key Brexit vote coming up  (probably), I couldn’t miss the chance to offer you some pre-Christmas Brexit reflections. So here goes…(and yes I am aware how febrile things are so these thoughts may date VERY quickly). 

Before I do, let me set out some key principles that I believe must drive the debate:

  • we must respect the result of the referendum, so that a second referendum should only proceed if it is considered legitimate and can be done well in time (in terms of process, electorate etc.)
  • we must also respect the rule of law, so regardless of how difficult it could be, if evidence of abuse and illegality is persuasive then the result must be quashed 
  • we should try, if we can, to take a middle ground that respects the result, but also respects how close the result was. As far as possible, extremes on the debate (no deal, Hard Brexit etc.) should be avoided. 

Five Interesting Developments…

So the first interesting development was reported in the Sunday Times recently. What happens if the key Commons vote on Mrs May’s deal goes ahead and she loses?  The Sunday times has kindly produced a rather complicated flowchart, but let’s focus on a May defeat. Well, she could of course decide to resign but I think that’s unlikely due to her own peculiar view of duty and severe pressure from colleagues not to hand it to the likes of Johnson. Labour will immediately call a vote of no confidence to try and trigger an election but will clearly fail, as few Tories will want to risk a Corbyn government. At the same time, many may be very unhappy with May for a variety of reasons so there is a chance that clever use of amendments can separate the political colour of the government from its leader i.e. a vote of no confidence in Mrs May but not the government. Possible but unlikely I think, given the uncharted waters it would lead us into.

Speaking of uncharted waters, my second development was the hat trick of defeats for Mrs May last week was pretty unprecedented, the worst series of commons defeat in a single day in 40 years.  

Included in that was my third development, the unprecedented vote to find the government in contempt of parliament, and forcing the publication of the Attorney General’s legal advice on Brexit (and of course triggering another certain type of Brexiteer to find an excuse to go into melt-down over the Irish backstop again). 

My fourth interesting development, watching from Scotland and as someone against Scottish independence, was a tacit admission from the SNP that referenda may require a second confirmatory vote. Of course the First Minister was talking about Brexit, but what is sauce for the goose and all that…

Finally, and relevant to below, are two sets of comments. One, of the idiotic and disgraceful kind from Priti Patel, (the idiot’s view of what a clever person is), illustrates just how insensitive, narrow of view and poorly informed about history some Tories can be. 

More seriously the second set of comments from the leader of Norway’s European movement, shows how complicated all the options are, and how enmeshed with uncertain legal questions everything is. Because if the UK does need to apply to EFTA, these comments don’t suggest it will be an easy task. 

OK So Given All That, What Are the Options?

Ok, enough with the developments already (and there are many more!), and on with the show. Here is my view of the 4 realistic options on the table as I write:

Option 1 Mrs May’s Deal

Option 2 Norway Plus 

Option 3  A Second Referendum, the So-Called People’s Vote 

Option 4 No Deal- Leave the EU on 29th March 2019

Now, Option 1 doesn’t appear to have many friends and looks likely to face defeat if voted on tomorrow. I’ve been saying for some months that I think the government will simply be seeking to avoid a massive defeat at this stage and to buy time for continued discussions to win over Tory rebels and a few Labour rebels with various concessions.

I’d expect under this Option, a defeat of less than say 80 votes would see Mrs May go back to Europe to seek and receive some (presumably pre-agreed?) concessions from the EU, alongside continued stern warnings that a fundamental renegotiation isn’t possible. I agree with that view about renegotiation, (subject to several giant caveats below- because I don’t always think people are talking about the same thing here).

[Sidebar- remember Mrs May has negotiated 2 things- a legally binding Withdrawal Agreement signed off by EU members, and a political declaration of the future relationship. ]

Now I don’t think (originally) that this was entirely the terrible strategy that everyone else seems to think. Mrs May, as a Remainer at heart, but out of a sense of duty combined with hubris and terrible negotiating skills, and terrible early advice, has tried to leave the EU whilst keeping as close as she can. However I do think events I discuss below mean this strategy is close to dead. 

Which leads me to Option 2 so-called Norway Plus. Under this option, the UK would stay inside/rejoin EFTA, whilst also staying in the Customs Union.  

Advocates would say it has several advantages- we technically do leave the EU, but we retain membership of the single market and customs union. We are also not subject to the rulings of the ECJ directly. And although in a customs union for goods, we can still negotiate trade deals with the rest of the world for services. And we are out of both the CAP and the CFP, which people like me coming from a sustainability perspective, tend to be supportive of. 

Opponents have quite a bit to say on this option too. Firstly, the UK would be subject to the rules and laws of the EU, without much say (there is some influence but nothing like under full EU membership). Secondly membership of EFTA means accepting freedom of movement, a key perceived reason why people voted to leave the EU. Thirdly, we still have to make contributions to the EU budget (albeit 10-15% lower). Fourthly, being in the customs union means no global trade deals on goods except as part of the EU negotiations. And finally, ok technically we’d not be subject to ECJ rulings but in practice the structures look very similar. 

Others are suggesting Norway Plus might be a good interim option whilst the UK figures out what its long term desires are- in or out. I’m of that view, whilst being aware it’s a bit disrespectful to EFTA members, and a hard sell to them (Hey we’re a giant economy, let us join your smallish trading club then we will decide whether we want to stay or not…)

Alot may turn on whether the UK is still a member of something called the EEA alongside EFTA, or whether we have to apply for membership. And as the comments above from Norway suggest, this could be difficult and would require time. So, whilst I can see the benefits of Norway Plus, I do wonder whether its a realistic option in the timescale we have prior to leaving the EU. 

Option 3  The People’s Vote- A Second Referendum.

Although I still think this is unlikely, it is becoming more and more feasible. Under various scenarios mapped out, there is no majority in parliament for any option, just as there seems to be no majority amongst the public either: for Mrs May’s deal, staying, no deal or a Norway Plus option. At that point, MPs who up to now have been worried about being seen to ignore democracy, may feel it is time to let the people decide and to hold a second vote. 

There are some reasons not to do this. Firstly, the last Brexit vote was hardly a paragon of good practice in terms of campaigning, voter registration and rights. The lack of time to get this done by end March is a real concern. Some worry that even the suggestion of a second vote risks violence and unrest, or more likely just reinforces the view of those who feel dispossessed that the elite will always ignore their views. 

I don’t think there is a real risk of major violence but I do think we must take seriously the concerns about how Leave voters will feel and react and the potential (further) loss of confidence in our political system and voting itself. This isn’t an idle worry, as research tells us

None the less, on balance I do think a second vote is a realistic and credible option. In my view, major referenda making a major change should always require a second confirmatory vote once the terms are known (and I think a threshold of 55% or 60% should also be required- either to join something or to leave it). That said, we are were we are, and despite being a strong EU supporter, I think the country is better served if an option can be found that respects the 2016 vote whilst limiting the damage done. 

Option 4 No Deal 

Under this ‘option’ the UK simply leaves the EU with no deal and tries to manage the chaos caused by this as best it can. Whilst a bunch of dafties on the right wing of the Tory party think this is credible, nobody with any concern for the economy, society or our reputation agrees, and so it has zero chance of happening and I won’t give it any more time. 

3 Red Lines 

In the early stages of Brexit if you remember, Mrs May set out her position on Brexit, a position that rapidly become known as hard Brexit, and was very contentious because it wasn’t clear that people voting Leave were clear themselves exactly what they were leaving, given the conflicting views from the various Leave campaigns themselves. The details vary but my take is that Mrs May indicated there were 3 red lines:

  • Leaving the single market and customs union in order to prevent freedom of movement and regain control of EU immigration, alongside the ability to strike global trade deals
  • No longer be subject to the jurisdiction of the European Court of Justice 
  • regain control of UK law making and particularly budgets i.e. limited or no contribution to EU budgets 

Now the reason I mention these again, apart from the fact that I think they were wayyyyy too absolutist and closed off plenty of decent options (Mr Timothy I’m blaming you for your crap advice at the time despite your protestations now) ,is because they determine what options are possible for a future relationship. Change the red lines, and you change the possible relationship with the EU. Something we’ll return to in this already long post!

Two (Ok three) Court Cases

Very significant in all this, is one court case that attracted alot of attention, and two that haven’t. The first earlier this week came from a challenge from a collection of Scottish politicians, and effectively hands sovereignty back to the UK in stating that the UK can univocally revoke Article 50 and remain in the EU if it wishes, as long as this happens before the leave date. 

This is a VERY big deal as it effectively allows the UK to cancel Brexit if it so choses. Incidentally, the handing back of sovereignty is coming from an EU body – ironic don’t you think? Congratulations as well to Jo Maugham and the GoodLaw project for making this happen.  

The second court case was on whether the UK, when notifying departure from the EU under article 50, was also notifying departure from the EEA under article 127 of the separate treaty. These blog posts explain what I am trying to say here, here and here. My understanding is that the case was lost (or rather not really taken to a ruling), and so Option 2 above is harder than it looks, but serves to show how complex and multi-dimensional Brexit is, the real importance of law in these debates, and also how law and politics intertwine. 

The final really important area is tied to evidence of multiple breaches of the law by the various Leave campaigns, and whether they are serious enough to warrant the referendum result being quashed by a Court. That’s about as serious as it gets, and I don’t mention it lightly but it is surely the case that we need to know if we are planning to leave under false pretences because someone or some organisation ignored the rules and effectively stole the result. The details of the Court case are here, and here is a link to evidence from a leading academic, as well as multiple evidence lines from the tireless Carole Cadwalladr. Now at this stage we await the case’s outcome and the outcome of criminal probes, but if nothing else two things are clear. One, we really need a ruling on whether the verdict of the referendum should be quashed soon (!) and two, we really must tighten both the rules and  the enforcement of the rules, and understand far better and far more quickly the consequences for our democracy of these sorts of breaches, which often have looked technical and rather dry. In that respect, we are very similar to the turmoil the US is experiencing over possible Russian interference in its elections. 

One Amendment- But A Very Significant One..

One of the defeats Theresa May suffered that I mentioned above, if you can remember back that far dear reader, is the former Attorney General Dominic Grieve’s amendment handing much more control to the UK parliament. The amendment was passed, which means instead of the previous ‘take it or leave it’ offer that Ministers has insisted on (or the Sinatra approach  if you like- My Way or the Highway…), we now have a situation where MPs can effectively instruct the government which deal to propose and take. Or, as a minimum, that a no-deal option is off the table as parliament won’t vote or accept that. This is why as I said above Option 4 is effectively dead, and Option 1 including Mrs May’s original tactics to get it through, are also probably not going to work. After 2 years of a rather supine parliament, I’m glad it seems to be waking up and taking back control, to borrow an expression. 

OK That Was Really Long- Can You Now Cut to the Chase…?

With thanks for sticking with me this far, time to now try and draw the threads together. Events of the last few months have made the picture both much more complicated and more clearer. So let me try and offer some closing thoughts on what happens next. 

Firstly Option 1 does look dead as an immediate option, with the vote either delayed or lost. That’s partly because of the Article 50 court case allowing the UK to cancel Brexit, combined with the Grieve amendment, and together effectively kill off no deal as an option, whilst therefore removing a key plank of Mrs May’s ‘Sinatra approach’ (if you don’t vote for my deal, you might get no deal or no Brexit). Option 4 is dead for the same reasons. 

So, it is very clear that whatever happens, we are now heading for a much softer Brexit than might have been apparent in 2017, or even 6 months ago. Incidentally in my view that kills off any ‘Scottish option’ and with it, any remote prospect of a second referendum. In truth, the Scottish option was always a non-starter, for the reasons I list here

Secondly, it’s clear we need any lingering doubts about the validity of the result put to bed, and soon. And in future we need much stronger thinking, rules and consequences concerning any foul play in referenda that we call. 

Thirdly, it seems clear to me that behind any minor tinkering, the EU is NOT going to renegotiate the legally binding withdrawal agreement, despite the fantasies of Mr Corbyn. Why not? Well partly because it was taken 2 years to negotiate, partly because the EU has bigger fish to fry (hello immigrant crisis, Eurozone issues, Italian deficits and the rule of democracy in Hungary).  No, unless we decide not to leave, the terms of the Withdrawal Agreement are set. Now I can’t pretend to understand all the intricacies linking the withdrawal and political documents, but I’m not sure they matter very much ultimately. 

Fourthly, that’s why I think in some shape or form, unless the stars align for a second referendum (which I think has only a 30% chance- up from 10% a year ago) , then parliament will find a way to pass the Withdrawal Agreement. That’s because of the Grieve amendment, with the new set of understood ‘rules’ in place, Parliament can now drive the future relationship. 

Now the future relationship is an entirely different issue, which is why I think parliament will accept withdrawal and we will leave the EU as expected. However after that I think things will change again and potentially in quite large ways. 

So, fifthly, I think Mrs May will survive in the short-term, long enough to see Brexit happen and for others to allow that to be ‘on her’, for better or worse. At that point, I think the Tories will move quickly to replace their leader with a moderate figure who will look to reset things, aiming at a much softer Brexit. I don’t think Labour can force a general election, but it is possible a new PM, with a new withdrawal agreement in hand aimed at 2021, will go to the people in 2019 or 2020. That’s about as far as my crystal ball will go but I am effectively predicting that the next UK election is about the terms after transition, with the UK having left, but with various forms of soft Brexit on the table.

The red lines will be replaced, perhaps this time with more consensus and discussion and less haste, against a background of a ‘Brexit bonus’ budget from spring 2019, a clear appetite amongst the public for rising spending and a  flummoxed SNP looking for new reasons to be aggrieved. There will be ongoing lack of clarity over the exact post-Brexit relationship but with a clear direction towards the softer end. That’s partly because concern over immigration is falling. And with falling concern and rising spending, UK politicians will have more breathing space to be a little more expansive about the future relationship. And partly, because the rise of Trump and the populists makes the EU and international partnerships look just that little bit better to some…

So, Brexit won’t mean the end of Brexit because if I’m right, 2019 really does bring Brexit but also a new PM, a possible general election, a new set of red lines, a new start on the future relationship, and lots of discussions about Norway Plus verses a Canada style FTA and so on. Expect the transition to go on beyond 2021 unless EFTA can be agreed quickly. Expect a decadal long debate about whether we were right to leave and towards the end of the 2020s, a debate about whether to rejoin.

And finally finally, where does this leave those who voted for Leave as a way of showing their concern over loss of control, of a political system not working for them, over the erosion of their rights and sense of community as immigration changes communities and traditions, and as a rejection of rising inequality. I’m afraid it doesn’t really put them (or us!) in a great place. So I’ve said before, these are crucial issues, but I’m afraid Brexit was never going to address them in the way people expected. Brexit is surely the ultimate wrong answer to the right questions…