Brexit Briefing 77: Getting over the finish line?



It was another momentous week in the Brexit negotiations, when ancient parliamentary precedents were invoked and there was final confirmation of what has been clear for months, that March 29th 2019 would not be Brexit day after all. 

At the start of the week the expectation was that  the Brexit deal would return to the House of Commons. However, the Speaker, John Bercow, cited a parliamentary procedure dating back to 1604 and interpreted it in such a way that the Prime Minister could not bring the withdrawal agreement back for a third vote without "substantial" changes. 

The government is expected to try to bring the deal back for a vote this week, although they will have to find a way to make it different in order to meet the criteria stipulated by the speaker. However it will only do that if there is a possible majority for the deal and at the time of writing it is not clear that there is anywhere near such a majority. A few Conservative MPs have switched to backing the deal in the last week  but the majority of the rebels remain committed to voting down the deal. 

This left the PM having to go to Brussels to ask for an extension to Article 50 to avoid the UK automatically falling out of the EU next Friday. This is one of the few things that had been approved by Parliament last week. 

Her original proposal was to extend until June 30th, which is the end of the European Parliament’s current mandate and the latest possible date that the UK can be in the EU without having held European elections. This was rejected by EU leaders, with French President Emmanuel Macron being one of the most prominent voices arguing against. 

Instead, EU leaders offered two possible scenarios. The first was an unconditional delay until April 12th even if the House of Commons reject the Withdrawal Agreement next week. The second scenario was an extension until the 22nd May on the condition that the withdrawal deal is approved. This would give the UK some time (but probably not enough) to pass the necessary domestic legislation in order to leave. 

Despite the bluster about the EU being ready for a disorderly Brexit, ambassadors were briefing Brussels correspondents this week that this was "the worst of all worlds that we don't want to enter into." It appears the goal of EU leaders is to try and focus minds in Westminster by raising the spectre of Britain crashing out of the EU without a deal, as a means of getting more MPs to switch and back the PM.

While these new dates provide breathing space for both negotiating teams, they pose fresh problems for the UK. The new European Parliament will not sit again until July 2nd, while the process of nominating a new European Commission will start in earnest this summer to start work in November. This could further slam the brakes on the government’s wish to move towards negotiating the future relationship issues that will define the terms of trade between the UK and the EU. With the transition period set to end in December 2020, it does not give the Prime Minister much time to thrash out what those new trading arrangements will look like - with the thorny issue of fishing rights still left to be negotiated. A UK-EU trade deal would also have to be ratified by parliaments across the bloc, which could potentially delay Brexit further. The Canadian government was left stunned three years ago when the tiny Walloon parliament in Belgium torpedoed the EU-Canada agreement. Another cliff edge will then be fast approaching. It would the British government with two very unpalatable choices: either extend that transition period, during which the UK would be a rule taker without a seat at the table, or trigger the controversial backstop, which essentially keeps the UK in the EU customs union in all but name and could limit how far the country can diverge from EU rules in the future



This approach provides the EU with lots of options and the UK with several headaches. The reprieve until April 12th is a temporary one and is designed to force the UK to make a swift decision if, as expected, the withdrawal deal can not be approved. The EU will be expecting a new approach from the UK, which may emerge from a series of indicative which are expected next week in order to test the will of the Parliament on various options. 

However, the EU approach looks suspiciously like they are giving themselves fallback options. A second extension after the 12th April can easily (and will almost certainly be given) until the 22nd May and then again until the 30th June. However the UK will have to actively ask each time, ensuring that a no deal Brexit will only happen if the UK doesn’t ask for an extension at each stage. The EU appears to be trying to ensure that they avoid blame in any blame game which would emerge in the aftermath of a no deal Brexit. However it does appear the Eu would grant a second extension until the 22nd May if the UK wanted to go for no deal and needed time to prepare. 

Where this all gets very difficult is if the UK wants a delay beyond the 30th June. To do that the legal advice in Brussels suggests that the UK would have needed to have elected MEPs in a European election on the 25th May.(the date the elections take place throughout Europe). To do that the UK would have to have informed the EU by the 12th April that it wished to stay beyond the end of June. It would also have needed to have started the election preparations by that date. 

What all that means is that the UK has until the 12th April to make its mind up. Either by backing the deal (which looks unlikely) or by deciding on a no deal (probably on the 22nd May) or by agreeing to remain in the EU beyond June to try to negotiate a new strategy for leaving (and holding European elections) 

As a result, to coin a phrase “nothing has changed” The three options are the same that they have been for the last six months. The PM’s deal, no deal Brexit or no Brexit at all. 

Next week will likely be the most decisive week of the entire Brexit process. If the deal is defeated again, Brexit could then take any one of the many different routes available, including single market membership, the customs union, no deal, revoking article 50 altogether, a referendum, or combinations of the deal and the single market or the deal and customs union membership. 

It is also possible that there isn’t a majority for any of them, and if that is the case we really will be in uncharted territory.

The next three weeks will therefore contain even more political drama, yet for the first time, the end does appear to be in sight. The EU has imposed the new time frame and has not closed off any option. It is waiting for the UK to respond. Somehow the UK will find a path forward in the next few weeks, but it is still impossible to know what that path will be. 

There are still many unresolved issues. The EU is still not ready for no deal. For example, key legislation that would provide visa-free travel for UK citizens to the EU and EU citizens to the UK is still to be approved. However, the onus is now on the British government to decide what steps it will take next. Whatever happens over the next few weeks, it will be the decisive moment in the Brexit process.