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.
Only a fortnight earlier MPs had rejected that WA and its accompanying Political Declaration (PD) – The May deal– by a record 230 votes.
Despite the PM’s previous implacable insistence 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 already become 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 Chief Whip, Julian Smith – that seeking broader cross-party support for a softer Brexit, as was preferred by her chief of staff, Gavin Barwell, would have split her party more certainly and quickly.
She needed something 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 eliminated or at least time-limited the backstop 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 July 2018 Brexit White Paper mooted are not feasibly available, 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 it has exercised over the negotiation process. The UK could press for the adoption of alternative trading arrangements of its own choosing sooner, rather than later (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.
Their – always lent and conditional – support will be withdrawn in the absence of 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.
Yet 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 offer May something ranging from a letter(s) of comfort to a codicil or supplementary protocol to the main body of the WA, as indicated in the 24 January Letters of Presidents Tusk and Juncker to Prime Minister May<
Their content, subject to sympathetic interpretation, could allow May to claim that the backstop would be ended with reference to some defined process, providing her ERG faction some residual assurance that it would not be permanent.
Such assurances will almost certainly call upon the beholder to make a semantic differentiation of temporary and indefinite, open to future interpretive dispute. Subordinate to the main legal body of the WA , such a protocol or codicil will not be legally certain, but will 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 that 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 as long as one year, will follow.
The Commons would then increasingly likely vote for a softer Brexit, or, if it remained deadlocked, as the only last option left on the table, apart from voting to revoke Article 50 or for a general election, or for 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.
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 on the 27 February, this time with Sir Oliver Letwin, a Conservative ‘one nation’ grandee appealing to its middle ground.
A similar amendment fell on the 29 January. This was 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 is provided here.
Another month has elapsed since then. Barely a month is now left 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 who 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 their 50-odd members support the Cooper-Letwin amendment it would likely pass on the back of majority Labour support.
Even more significantly, Remainer Ministers, have put pressure on the PM to rule out No deal before 27 February, some apparently threatening resignation. This weekend three cabinet heavyweights, Amber Rudd, Greg Clark, and David Gauke, expressed, in clear and unambiguous terms, their support for an Article 50 extension.
Others, including the chancellor, Philip Hammond, and the PM’s and hitherto steadfastly loyal deputy, David Lidlington, are probably keeping their powder dry, at least until next month.
If May still does not concede an Article 50 extension, they might well activate that threat, deciding that the time for them to finally bark had come, and by supporting the amendment help to defeat the government they had just left. 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 over 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. A short extension might even suit her as that would tend to concentrate ERG minds on the risks of continuing to reject her deal.
But it is also possible that May will try to persuade her Remainer Ministers and MP’s to give her until 12 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 MM’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 could follow, if an amendment by Hove MP, Peter Kyle, is not supported and whipped as official party policy. This, intriguingly and tantalizingly, trades acquiescence to May deal for the government allowing a second referendum choice between it and Remain.
But May could not accept it without splitting her party. It appears to be designed to put pressure on Corbyn to accept the principle of a PV, sooner, rather than later.
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 still blaming any adverse economic consequences on a Tory Brexit.
But if Parliament continues deadlocked, a PV could become the only (but elongated, indeterminate, and quite possibly counter-productive) way 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 a 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 determining the, and the order of, the questions, included in the PV ballot paper.
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 would best mitigate the economic damage of leaving both long- and short-term, lifting the economic deadweight of uncertainty that currently is depressing business sentiments, investment, and the wider economy. It could be negotiated within the existing WA and transition period timetable.
And, as pointed out in a A Week in December , 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 also explained, it is unlikely to secure a majority in this Parliament – at least, a sustainable whipped one, in the event that the Commons was allowed to vote on alternatives to May deal.
The Labour leadership can be expected to shy away from whipping its MPs to support Norway-plus, fearing that MPs, at both ends of the party Remainer PV and Brexiteer spectrum, would rebel.
Its official adoption could, and crucially, also allow May to paint Labour as the party of Brexit-in-name-only (Brino) driving a potential parliamentary and electoral wedge between the party’s divergent Brexit constituencies.
Norway-plus, is more likely to muster an unwhipped majority; more so, if MPs had already voted to reject a PV.
Yet, May, as PM, then would be unwilling to progress Norway-plus as head of the government. 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.
That could possibly change if she decided to resign, but her potential replacements, even if they willing to tack towards it – would also face heavy internal ERG and party resistance.
A new government with Hunt-Javid-Gove-Rudd at its centre of gravity might at a push take the plunge, but probably only by presenting the option again as a temporary rather than permanent arrangement.
Another general election would appear increasingly unavoidable. If that did come to pass, 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 its negotiators would come back from Brussels with to ask the new Parliament to approve.
The burning issue as to whether – and in what form – that agreement should be ratified in a fresh referendum would still need to be settled, if that had not been defined in a fresh 2019 party Brexit manifesto.
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 have 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 further 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. It could even offer concessions, providing some prospect an independent UK trade and migration policy sometime in the future. That is far from certain, however.
Downsides of the option 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 pertinently 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. Is official adoption does not, accordingly, appear to be a runner, at this stage.
More likely is some government tweaking towards it in substance, if not stated intention. A longer transition period could be agreed that with an Article 50 extension extending beyond a May 2022 election date; keeping the UK, in effect, within a CU and SM until then.
A revised Political Declaration (PD) could also offer some genuflection to Labour’s position, particularly with dynamic alignment on standards.
The PM will need to delimit the precise offer required get enough added Labour abstentions and Conservative votes to offset the official Labour, Scottish Nationalist, and TIG opposition, which will joined by ERG hardcore rebels, numbering in all likelihood between 30-80.
If their number settles closer to 30, she could have a chance. The Private membership lists of the different ‘tribes’ of the Conservative Party, recently obtained by the Financial Times, suggests that if the existing Conservative payroll and existing Brexit group are joined by unaffiliated MP’s, such as Oliver Letwin, the government would harness just short of 220, requiring it still to capture a substantial mix of ERG returnees to the government fold with Labour votes and abstentions.
Even if a majority reliant on cross-party unwhipped votes is secured by a whisper, it would be an unstable one to base the piloting of the Withdrawal Bill and associated legislation through Parliament.
The WA backstop with its separate regulatory treatment of NI would also continue to hang over subsequent negotiations with the EU as a Sword of Damocles, perhaps, ruling out the DUP support.
It is, accordingly, quite possible that if a bare parliamentary majority was obtained for such a tweaked May deal, it could then be offered for ratification either through a general election or a yes/no binary referendum choice.
But if that principle was conceded, pressure would be intense for it to include Remain and No deal options.
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 they consider is a ‘clean’ No deal Brexit, are concentrated into the ERG 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.
Some MP’s representing often marginal constituencies, concentrated in the North and Midlands, that voted to leave, often by a large margin, will vote against any official backtracking on the 2017 manifesto commitment to respect the 2016 decision.
This polarisation within the parties between No deal and a PV 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 that it will rely upon to secure power.
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 not unrelated to the fact 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 evidential realities. 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.
Or the limited – at best – prospect of the UK negotiating free trade deals with the rest-of-the world could compensate for the loss of frictionless trade with its nearest trading partners, especially within a globalized world where regionally-based trading bloc agreements have become predominant.
That failure contributes to continuing deadlock.
This spring, a deal tweaked towards a continuing CU and regulatory alignment in substance, if not stated intention, if combined with a limited Article 50 extension to May, seems to provide the politically most feasible route to secure at least an unwhipped parliamentary majority for a revised PD to be taken back to Brussels for negotiation linked to some tinkering of the wording concerning the NI backstop.
If that majority proved too unstable for the withdrawal legislation to be piloted through Parliament, the cliff edge would return. If Article 50 had to be extended again, a second referendum with all of its attendant dangers as well as opportunities, would appear inevitable.