The Agreement becomes the Disagreement: Scanning the Brexit Horizon

 

 
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The next 4 months are crucial although the reality is that it is the next 4 weeks that will determine so much. And in a week where the leaks are coming thick and fast, this leak on the timetable of how the Government might try to sell a Brexit deal many thought a deal had indeed been done. At the time of writing this appears not to be the case but then who knows.

So what do we know? There are pieces of Brexit related legislation coming up that will concern many sectors including trade, fishing, agriculture and farming plus an Immigration Bill that affects employers, EU nationals and those ex pats living abroad.

The planned EU summit where the deal was going to be seen and signed off by the EU was planned for November 17th -18th but unless May can pull a special sort of rabbit out of a hat at next Tuesday’s Cabinet meeting (13th November) this won’t happen. All eyes will then be on the EU Council meeting of 13th and 14th December.

So if all goes to plan (with caveat of nothing has gone to plan to date) the Withdrawal Agreement will be with us before Christmas. Originally the Political Declaration (Future Relationship Framework) was to be published at the sametime but as this is non binding - and complicated - no one is holding their breath.

But already there is pressure on the government to provide details of legal advice about a possible  Brexit deal with the DUP, Labour and Lib Dems demanding it be published,and following requests at this weeks Cabinet to see the full document.

But this leads to the very vexed question of the meaningful vote because as Jack Simson Caird says in The Times: “for parliament to make an informed choice over whether to accept the government’s Brexit deal, it will need the government to supply full and detailed analysis on the deal’s potential legal and constitutional implications — not just that which comes from the attorney general’s pen, or the pens of his civil servants”.

The suggestion is that the Agreement will be presented to Parliament as soon as a deal is agreed with the EU in the form of a motion. The question now is whether it will be a simple yes/no affair as some such as Jacob Rees-Mogg and supported very much by Raabs recent note or whether this will backfire and a risk not worth taking as Dominic Grieve reckons.

The issues are best captured here again by Jack Simson Caird and an explainer from the Institute for Government here.  And for those who can’t sleep at night and/or are fascinated by process and politics this recent Select Committee evidence evidence given by Hilary Benn is really illuminating.There is a suggestion that there may be some mileage for leaving this until the last minute so as to really hammer home the “its this or the cliff edge” scenario - but that tactic does come with a huge risk attached.

Where does that leave us? Here are some possible avenues:

SCENARIO ONE: MPS APPROVE THE WITHDRAWAL AGREEMENT

MPs agree to pass the motion, possibly with amendments, but as long as these amendments are acceptable to the EU we move onto the next stage. That stage is turning the agreement into legislation the EU (Withdrawal Agreement) Bill before exit day. And as the UK in a Changing Europe and Bingham Law Centre has made clear parliamentarians may try to extract further concessions -  if the government achieved a majority for the meaningful vote on the Brexit deal, it may not necessarily get one for the Bill needed to implement it.

At the various parliamentary stages in the Commons and the Lords, parliamentarians will be able to table amendments on the detail of the arrangements which could, in effect, turn into a series of meaningful votes.

SCENARIO TWO: AMENDING THE MEANINGFUL VOTE

This scenario is now very dependent on what ruling and advice is given regarding the meaningful vote (see earlier reference to the Procedures Committee evidence). This is the IF SCENARIO. If the first vote was lost by a small margin, or if the Commons amended the resolution if permissible, the government might attempt to respond to the concerns of MPs in order to secure a majority second time around. But MPs could respond by voting with an amendment to change the Brexit process itself, by for example inserting a referendum requirement or other procedural hurdles. Given the lack of a majority for anything it’s hard to see what is left to the Government other than to concede to further referendum/peoples vote or move to a No Deal scenario. Or could lead to scenario 3…..

Oliver Letwin has floated the idea of a ‘smorgasbord’ approach where MPs pass non-binding votes on various options and then vote on May’s deal. This is gaining some ground especially amongst some in Labour, especially in light of the recent development  of asking for publication of the Attorney General’s legal advice.

There are risks on all sides. Will it push the government to a No Deal or will Brexit Secretary Dominic Raab’s tactics of potentially tying MPs hands is likely to backfire MPs as Dominic Grieve told the House of Commons Procedure Committee? Grieve said that MPs said to the committee that “if the government tries to pursue the route they are opting for, it is far more likely that the deal is likely to be rejected”. The all or nothing scenario is the one that worries many MPs on all sides.

SCENARIO THREE: A GENERAL ELECTION

A general election. This is the LONG SHOT SCENARIO, however much some may wish it to be the answer. With the Fixed Term Parliament Act a two thirds majority of the Commons or 464 MPs is needed. Or a simple majority  50% plus 1 must pass a specifically worded no confidence motion in the government. This would then be followed by a 2 week period to allow for an alternative government to be formed - if no alternative found then a general election follows. SO a general election cannot be the result of the rejection of the WA or any other Bill or even a lost vote on the Budget. May could of course just overturn the FTPA if she really wanted to hang up her boots but that could take months and months.

SCENARIO 4: NO DEAL

No Deal. This will come about either because of Scenario Two or in that game of Bluff and Double Bluff (or maybe its Russian Roulette) May decides that Chequers has been well and truly chucked and she has nothing else in the tank. Under rules agreed by Parliament in June, if no deal is reached by January 21st 2019, or the Commons has rejected everything on offer, the government has 2 weeks to make a statement on what it will do next. The Commons will then vote on what they come up with- but this is a neutral motion meaning that it is up to the Speaker to decide whether such a motion is amendable. Thereafter, as Bingham Centre for Rule of Law concede things may become much more murkier.

What if the Government decides on No Deal option and parliament then votes that down? Even if parliament accepts that it takes us into February and as recent technical notices on No Deal have pointed out parliament has to pass significant legislation for an orderly No Deal. In other words can they deal with all this in the 5 - 6 weeks between beginning of February and March 29th?

This is something the EU must consider, and reinforced by top politicians from four parties - the Lib Dems, SNP, Plaid Cymru and Greens - telling  EU chief negotiator Michel Barnier to begin “serious contingency planning” for a vote on the Brexit deal, during a joint visit to Brussels.

THE END IS IN SIGHT

As May tries to get some movement and support for Chequers at EU level the only thing that is certain is that there is no majority for anything. No majority for No Deal, no majority for Chequers and no majority for another version. Currently party managers and whips are grappling with the possibility (very real) of parliament voting down anything that says Chequers or that says No Deal.

Next week sees Parliament return from a short recess with what could be a game changing Cabinet meeting on November 13th. The Prime Minister was then planning a rolling programme no deal legislation because there has to be a point, if no agreement with the EU has been reached, that  full-scale planning for no deal has to commence. Of course to some this full scale planning has begun. Imagine Conservative MP Tom Tugendhat surprise when  found out by chance plans to build an enormous car park in his Kent constituency to accommodate jams caused by a no-deal Brexit, drawn up without consulting him.

If we make it to Christmas with no further movement the crunch date becomes January 21st as If the government has not presented its withdrawal agreement by this date, powers for MPs to influence ministers' next steps will kick. Parliament will have to pass the European Union (Withdrawal Agreement) Bill to implement the withdrawal agreement by March 29th and the absolute latest the European Parliament has to vote on the deal by its last session on April 18th as after that it goes into recess for European elections.

So is an extension of Article 50 likely? Anything is now possible at the same time as nothing seems possible. Its a case of rue everything in, and nothing out and to coin  Guy Verhofstadt nothing is settled until everything is settled. Percentages are becoming irrelevant too.  Prime Minister May says 95% has been agreed, Michel Barnier says 90% but the view from Ireland is if that if there is no solution for the Irish border,”for our Parliament it is 0% that is agreed at the moment.”


 
Malene Bratlie