Brexit Briefing 64: A week is a long time in politics

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Harold Wilson once said a week was a long time in politics, and this week proved that old adage right. We witnessed the preparation for a meaningful vote on the Brexit deal, then the withdrawal of that vote, government defeats in Parliament, a no confidence challenge in the PM, which she ultimately won and all sorts of political manoeuvrings from all sides. 

Meanwhile in Brussels, the EU waited and watched and many were preoccupied by the awful events in Strasbourg which directly affected many people who were in the city for the European Parliament plenary session. 

The events in Westminster are fast moving, and unpredictable. However certain facts remain the same and the key one is that whoever is the leader of the Conservative Party, and the Prime Minister, they will face the same unfavourable parliamentary arithmetic, the same lack of consensus over how to pursue Brexit and the same negotiating mandate from the European Union. 

The difficulty of bridging the differences between all sides on the Irish backstop will still be there, with no easy answers. 

The Prime Minister cancelled the parliamentary vote on the withdrawal agreement because it became clear that it couldn’t pass. The chief problem being the Backstop proposal that is intended to avoid a hard border in Northern Ireland, but from which the UK can not unilaterally leave and which ties the whole UK into a customs union with the EU. 

However it will need to be voted on at some stage in the next few weeks. If a defeat is to be avoided, the Prime Minister needs to get some concessions from the EU that might alleviate these concerns. 

The Withdrawal deal currently includes the backstop in the legally binding part of the text. It states that if a trade deal doesn’t come into force by the end of the transition period, then the backstop will automatically kick in. That element is not so controversial, although the British Prime Minister Teresa May did propose to add an amendment giving the British Parliament a vote to enter the backstop before the vote was pulled earlier in the week. 

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The really problematic part is that the UK can only leave the backstop with the agreement of the EU and only if the EU believes that the trade deal better ensures an open border in Ireland than the one provided for by the backstop (ie a UK wide customs union) 

It is this point that most troubles British MPs who are opposed to the deal. As a result the Prime Minister spent the week travelling Europe trying to persuade European leaders of the need to amend this element of the deal, to allow the UK to unilaterally leave the backstop. 

To date it looks unlikely that the EU will respond positively, at least not to the legally binding part of the text. EU leaders seem to show little appetite to open the deal up. However many of them have suggested that the accompanying political declaration can be tweaked, to make it clear that the EU does not want the UK to be in the backstop for long and that it is committed to a future trade deal. 

However this political declaration has no legal weight, unlike the withdrawal agreement. Therefore if for any reason the trade deal becomes impossible to conclude (and there are many challenges including Fisheries and Gibraltar) the UK will remain legally trapped in the customs union. In addition opening up the political declaration offers further dangers for the British government as it provides an opportunity for both France and Spain to demand further concessions on both fishing rights and Gibraltar, which could make the deal even harder to sell in Westminster. 

The key question over the next few weeks is if the Prime Minister can get enough from European leaders in the political declaration to convince rebellious MPs that the UK can avoid the customs union trap. 

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She won comfortably, but 117 Conservative MPs voted against her. Given that she will probably need around 80 to 90 of them to eventually vote for her deal to get it through the House of Commons, she will likely need some considerable concessions. EU intransigence on this point could cost everyone dear, as if they don’t recognise the seriousness of the situation in the UK there is a very real risk that the UK could fall out of the EU without a deal at all, endangering the economies on both sides of the Channel, the Irish border and UK contributions to the EU budget. 

There is also the risk now that the UK may not leave at all. If the government can’t get the withdrawal deal through Parliament and the EU is not prepared to amend it, the only other way to get it through would be to put it to the British people in a referendum. 

Because it is unlikely that referendum legislation could get through the British Parliament without a remain option being included (given the large number of remain supporting MPs in the Parliament) it opens up the door to the UK eventually not leaving at all. 

However a referendum would take a significant amount of time to arrange. It almost certainly couldn’t be done before the UK is due to leave the EU on the 29th March. Therefore the UK would have to either extend or revoke article 50 (the ECJ ruled this week that the UK could do this unilaterally)

All these options become possible if the government remains unable to get the deal though Parliament. Westminster has already clearly legislated in the EU Withdrawal Act that parliamentary approval is required for any exit deal but what is less clear is what would happen if the government hasn’t delivered the deal by the 21st January. This was the date set in the withdrawal deal, through an amendment, which sought to assert parliamentary control over the process to stop a no deal Brexit if the government was just counting down the clock until the 29th March. 

Whatever happens over the next weeks and months, it is certain to be an exciting time in British and European politics. As the deadline towards Brexit gets closer, it is likely that minds focus on both sides and there is a chance that more flexibility may emerge from the EU side. If that happens, the withdrawal agreement could well pass before March 29th. If it doesn’t, literally anything could still happen.