The UK will exit the EU on the 29 March by legal default without a deal (No deal), unless the Commons agrees on one, or a combination, of the following five options.
1. May deal revised by Brady amendment
The Commons by a margin of 16 votes on the 29 January mandated the Prime Minister (PM) to seek ‘alternative arrangements’ to the Northern Ireland (NI) backstop, included in the Withdrawal Agreement (WA) she had negotiated and agreed with the EU back in November.
MPs had only rejected the WA and its accompanying Political Declaration (PD) – May deal– a fortnight earlier by a record 230 votes.
Despite the PM’s previous insistent and implacable position that her deal– backstop included – was the best and only one on offer, her acceptance of the Brady amendment was not totally unexpected. It had come clear that May would to continue to court support from the hard-Brexiteer (HB) faction of her party by promising to go back to Brussels to get concessions on that backstop.
She seems to have calculated – on the advice apparently of her husband, Philip, and in accord with her the Chief Whip, Julian Smith – that seeking broader cross-party support for a softer Brexit instead would split her party more certainly and quickly.
Certainly, something was needed to take back to Brussels with parliamentary backing. Essentially, however, the can was kicked down the road yet again. The notion that the PM could bring back to the Commons a revised deal that would accommodate ERG demands for the NI backstop to be eliminated or at least time-limited in a legally certain way was illusory from the onset.
Alternative ways to prevent a hard border in Ireland, such as the technological fixes that the Brexit White Paper mooted are neither available nor feasible, at least within the foreseeable future.
As EU’s deputy Brexit negotiator, Sabine Weyand, put it pithily earlier in February, they simply don’t exist. A time-limited backstop, in turn, is a contradiction in terms.
It simply is not in the interests of the EU, either strategically or tactically, to re-open the WA.
Strategically, it would lose Brussels the agenda-setting control that hitherto it has exercised over the negotiation process, encouraging the UK to press for the adoption within an unrealistic time-frame of alternative trading arrangements of its own choosing (outside a common EU customs territory). Such premature arrangements could either cause the return of a hard border within Ireland, or through smuggling and the back-door dumping of goods through an open (NI) back door, undermine the EU’s own common customs territory and the single market(SM).
Tactically, the EU possesses no incentive to alter its red lines, at least until the last possible moment, to avoid No deal.
Many HB European Reform Group (ERG) MP’s are wedded to a No deal exit. They voted on tactical grounds for May to do their bidding while the No deal cliff edge becomes ever-closer. Such support was always lent and conditional and will be withdrawn without a demonstrable capitulation by the EU to their demands. Given that, any concessions offered by the EU to May to placate them would prove futile and probably counter-productive in outcome, taken by ERG members as a willingness to bend.
On the other hand, a No deal UK exit would itself activate the risk of the re-imposition of a hard border within the island of Ireland – the outcome that the backstop is designed precisely to prevent.
For that reason, Brussels has shown some willingness to give May with some mechanism, ranging from a letter(s) of comfort to a codicil or supplementary protocol to the main body of the WA, designed, subject to sympathetic interpretation, to allow May to claim that the backstop could be ended with reference to some defined process, in such a way to provide her MPs with some assurance that the backstop would not be permanent.
If finally offered, such an assurance(s) will build on the content of the 24 January Letters of Presidents Tusk and Juncker to Prime Minister May.
As such they call upon a semantic differentiation of temporary and indefinite by the beholder, open to future interpretive dispute by the contracting parties. Subordinate to the main legal body of the WA they will not be legally certain but rather rely on the good will of both parties, as was the case previously.
2. Extension of Article 50 agreed or imposed by Parliament.
The essential dilemma that the PM continues to face is that tilting towards a Brexit soft enough to attract cross party support will split her party, while relying on ERG support to secure a parliamentary majority is a chimera.
Boxed-in a corner of partly her own making, her forlorn hope is that by running the clock down close enough to the 29 March exit date will frighten enough hard-Brexiteers to pass her deal, with or without a last-minute EU concession on the NI backstop.
The stick she apparently thinks that she can hit them with is that if they do not, an extended, rather than an operational extension to Article 50 on the EU’s terms thatcould reach one year, will follow. The Commons would then increasingly likely vote for a softer Brexit, or, if that was not possible, for the only remaining option left on the table to break out of continuing parliamentary deadlock, save for a revocation of Article 50 or a general election: a People’s Vote (PV) that could reverse Brexit.
Such a strategy was always an inordinately dangerous, uncertain, and risky one, both economically and politically. That Parliament would allow such brinkmanship with so much at stake beggars reasoned belief.
It is likely to be interrupted on the 27 February, when Yvette Cooper’s amendment to set out a statutory process for MP’s to require the government to seek an Article 50 extension from Brussels will be re-tabled, this time with Oliver Letwin, a grandee appealing to the Conservative middle ground.
A similar amendment had fallen on the 29 January, largely because 14 Labour MP’s, plus the unwhipped Frank Field and Kelvin Hopkins, voted against it, while 12 abstained, including eight members of the current Corbyn-led shadow cabinet: Tracy Brabin, Judith Cummins, Gloria de Piero, Yvonne Fovargue, Mike Kane, Emma Lewell-Buck, Jim McMahon, and Melanie Onn. A full voting inventory of Labour votes relating to the 29 January amendments is provided here.
Another month has elapsed since then. Barely a month now remains before a default No deal proceeds by default. This time, therefore, the Cooper amendment is more likely to attract increased support from ‘agnostic’ Conservative MP’s that desire Brexit to be delivered through an orderly negotiated deal without further delay.
Consistent with that the convenors of the Brexit Delivery Group, Simon Hart and Andrew Percy, wrote on 21 February to Julian Smith, the Chief Whip, warning them that its members were inclined to vote in favour of the Cooper amendment to avoid No deal by extending Article 50. If it materialises the Cooper-Letwin amendment will very likely pass on the back of majority Labour support.
Even more significantly, Remainer Ministers, including Richard Harrington, David Gauke, Greg Clark, David Mundell, have both put pressure on the PM to rule out No deal before 27 February and threatened to resign.
If May still does not they might well activate that threat, deciding that the time for them to finally bark had come, and support the amendment, so helping to defeat the government they had just left. They could even, perhaps, be joined by Cabinet heavyweights, Amber Rudd, Philip Hammond, and her hitherto steadfast ally and deputy, David Lidlington. Such an act of desperation would be to the almost certain likely detriment to their future political careers, which, of course, does raise a question mark on its likely scale and significance.
But to head it off and to prevent a split that potentially could even prove more portentous than that involving the ERG, May could well bow to the inevitable and rule out no Deal, as well as signal that her government will allow the Commons to debate different options, including Norway-plus and a People’s Vote (PV), in March.
But it is also possible that May will try to persuade her Remainer Ministers and MP’s to give her until early March to come back to the Commons with a revised proposal subject then to a meaningful vote: one last kick of the can, before the day of reckoning, when Parliament finally has to decide whether to take control or not of the Brexit process to prevent No deal, finally comes.
3. Second referendum or PV
MP’s are riven into factions, each banking on a result – whether that is No deal, Norway-plus, or a PV – coming to pass as ‘the last one standing’ before the No deal curtain comes down, rather in a bar-room brawl fashion.
Two large segments of MP’s within the Conservative and Labour Party’s demand something that most MPs within the Commons generally, do not want: on the Conservative side, a No Deal exit; and, on the Labour side, a PV.
Without compromise from a substantive number within either or both groups, any alternative to No deal cannot command a stable majority within the Commons.
Apart from only a handful of ‘hard’ Remainers, of which three, Anne Sourby, Sarah Wollaston, and Heidi Allen, have already defected to The Independent Group (TIG) of MPs, most Conservative Mp’s oppose a PV.
A larger group of Labour Remainer MP’s do support it as providing a channel to cancel, rather than mitigate, Brexit. The original seven party defectors to TIG, cited Jeremy Corbyn’s failure to support a PV as a catalyst for their decision, accusing him of enabling Brexit contrary to the expressed wishes of most party members and voters.
Further such defections are likely to follow, possibly either side of 27 February, if an amendment by Hove MP, Peter Kyle, is not supported and whipped as official party policy.
Intriguingly, this links
This website has clearly set out the The Dangers of a Second Referendum, and understands the reluctance of Corbyn and many Remainers including Yvette Cooper – to embrace it.
It very likely would suit Corbyn and many in the shadow cabinet for the May deal to pass as the result of Labour abstentions – witness the lack of disciplinary action taken against the eight shadow cabinet ministers who defied the Labour whip to abstain on the 29 January Cooper amendment vote.
Labour could then focus on its domestic transformative agenda, while blaming any adverse economic consequences of Brexit on the Tory government that had instigated and delivered it without official Labour support.
But if Parliament continues deadlocked, a PV could become the only (but elongated, indeterminate, and quite possibly counter-productive) means apparently available to move the log-jam.
An element of chicken and egg, however, is present. A primary reason why there is no parliamentary consensus for an alternative to No deal is the refusal of the proponents of PV to endorse such an alternative: a going for broke mindset mirroring that of the ERG on the other pole of the Brexit spectrum.
And Parliament could well still remain deadlocked, this time on the specification of what, and the order of the questions, that the PV would seek an answer to.
4. Alternative Norway-plus
Norway-plus, involving both an equivalent Customs Union (CU) and continuing UK membership of the Single market (SM), provides the closest possible fit to Labour’s previous six tests, ostensibly designed to secure the same benefits currently obtained by EU membership.
By allowing continuing frictionless trade in goods along with the minimisation of non-tariff barriers for services between the UK and EU, it could provide the option that minimises the economic damage of leaving, longer term, and – because it could more certainly be negotiated within the existing WA and transition period timetable – short-term by lifting the economic deadweight of uncertainty that currently is depressing business sentiments, investment, and the wider economy.
And, as XXX pointed out, Norway-plus would meet the requirements of the overarching December 2017 NI backstop, rendering the WA backstop, with its separate regulatory treatment of NI, redundant.
But as XX explained it is unlikely to secure a majority in this Parliament – at least, a sustainable whipped one.
Labour would shy away from whipping its MPs to support it, fearing that MPs at both ends of its Remainer PV and Brexiteer spectrum would rebel. It could also allow May to paint Labour as the party of Brexit-in-name-only (Brino).
The option, if the Commons was allowed indicative votes on alternatives post-February 27, is more likely to muster an unwhipped majority, more so, if MPs had already voted to reject a PV.
Yet, May, as PMwould be unwilling to progress Norway-plus as head of the government,, however, not just because of her fixation on migration and ending freedom of movement, but because she could not carry her own party in negotiating it with Brussels.
In such a scenario, another general election would appear increasingly unavoidable, in which case Labour’s Brexit manifesto stance is likely to be that it would negotiate with Brussels a new deal broadly in line with its six tests.
If a majority Labour government was subsequently elected, something very close to Norway-plus is most likely what it would come back with to the new Parliament to approve.
The burning issue as to whether – and in what form – that it should be ratified in a new referendum would not go away, however.
5. Revised May deal merging into Jersey
The 6 February Corbyn letter to the PM demanded that the government should change its negotiating red lines within the PD.
This was with reference to five ‘negotiating objectives’ to be enshrined in law before the UK leaves the EU ‘to provide certainty for businesses and a clear framework for our future relationship’, including:
• a permanent and equivalent CU involving UK adherence to the EU customs code, the common external tariff, and commercial policy – subject to the UK having some ‘say’ in the detail of future trade deals; and continuing UK:
• ‘close alignment’ with the Single Market (SM); and,
• ‘dynamic alignment’ with EU worker, environmental, and consumer rights and protections, ensuring that such UK standards, as a minimum, keep pace with evolving standards across Europe, while providing scope for the UK to ‘lead the way’.
The letter fell short, however, of demanding full and continuing UK dynamic alignment with SM rules for goods. That, as a minimum, if full frictionless trade in goods between the UK and EU is to be maintained, would also need to be combined with the equivalent CU that it did set out. The combination defines the Jersey option. Its adoption, if sought within a revised PD, would then depend upon the EU softening its core red-line on the indivisibility of the four SM freedoms. A very big ask.
Yet to avoid a No deal exit that would itself would risk the re-imposition of a hard NI border, the EU could possibly bend at the last negotiating moment towards it, and even offer concessions providing a semblance of an independent UK trade and migration policy sometime in the future, but that is far from certain.
Downsides for the UK, in any case, include the economic cost of the loss of EU market access for services. Norway-plus would also achieve frictionless trade in goods, much more surely and seamlessly.
More pertitently at a domestic political level, the adoption of full Jersey would require May, not only to merge with the official Labour Party position on the CU, but to dynamically align with EU regulations concerning goods, splitting her party. It does not, accordingly, appear to be a runner, at least in terms of being taken formally on board as government policy.
More likely is some tweaking towards it in substance, if not stated intention. A longer transition period could be agreed that with an Article 50 extension could extend beyond a May 2022 election date; keeping the UK, in effect, within a CU and SM until then. Some genuflection to Labour’s position, particularly with dynamic alignment on standards, could also be made within a revised PD.
The calculation that the PM will need to make is the precise offer that will be needed to get enough added Labour abstentions and Conservative votes to offset the official Labour, Scottish Nationalist, and TIG opposition, joined by probably at least 50 ERG hardcore rebels.
Even, if a majority reliant on cross-party defections for such a tweaked version of May deal is secured by a whisper, it would be an unstable one to base the piloting of the actual withdrawal process through Parliament. The WA backstop with its separate regulatory treatment of NI would also continue to hang over the negotiations as a Sword of Damolcues, perhaps, enough to rule out the DUP supporting it in Parliament.
It is, accordingly, quite possible that if a bare parliamentary majority was obtained that May could, after securing an Article 50 extension, offer it for ratification either through a general election or a yes/no binary referendum choice.
Is there a way out?
With Brexit, the only certainty is uncertainty. The 60’s puppet show, Thunderbirds, always began with the clarion call that ‘anything can happen in the next half hour’: true for Brexit also, especially if the period is extended a bit.
Most MPs believe that a disorderly No deal should be avoided, but no majority exists as to how. At one pole, hard-Brexiteers, committed to what to consider a ‘clean’ No deal Brexit, are concentrated into a 50-100-plus faction within the governing party. At the other, a similar number of hard-Remainers, wedded to a PV reversing Brexit altogether, are concentrated within the main Labour opposition, which, nevertheless, contains many MP’s representing constituencies, concentrated in the north and midlands, that voted to leave, often by a large margin.
This has prevented a convergence towards a soft Brexit compromise that could secure a stable parliamentary majority sustained by cross-party whipping. The PM chose not to court cross-party support out of the real fear that would split her party; the Labour opposition, in turn, has resisted actually promoting a soft Brexit alternative to the government position that could best meet its six set tests, for fear that it would be accused both of supporting Brino – with continued EU control over UK migration and trade policy – and of betraying the 48% of who voted to stay, upsetting two key electoral constituencies.
Both parties agreed to trigger Article 50 and to ‘respect the decision of the electorate to Leave’ in the 2016 referendum. Subsequently neither front bench has been honest about the trade- offs involved between taking ‘back control’ and protecting future UK economic prospects. A failure, no doubt, related to that many of their respective supporters voted to leave out of ‘gut’ or ‘populist’ instinct, not ‘rational’ economic calculation.
Certainly, the parliamentary and mainstream media debate has seldom focused on the evidential realities, such as that: the retention of an open border in Ireland, without the separate regulatory treatment of NI, requires the UK to continue within an equivalent CU with the EU combined with some measure of continuing dynamic regulatory alignment for the currently foreseeable future that cannot be time-limited; and, the limited, at best, prospects of the UK negotiating free trade deals with the rest-of-the world that can compensate for the loss of frictionless trade with its nearest trading partners, especially within a globalized world where regionally-based trading bloc agreements are predominant.
It is that context that causes the five options outlined above to lead back in a circle to continuing deadlock. Option 5, in effect, a May deal tweaked towards a continuing CU and regulatory alignment in substance, if not stated intention, combined with an Article 50 extension, is identified as providing the most likely sensible and politically most feasible route to secure at least an unwhipped parliamentary majority for a revised PD to be taken back to Brussels for negotiation. If that majority proved too unstable for the withdrawal legislation to be piloted through Parliament, the PM could possibly secure parliamentary approval for a binary yes or no referendum vote on such a revised deal.