What. A. Week. 2.0
We’re coining a new term- Brexhaustion.
Another week of chaos. Another week of uncertainty. How does civil society effectively plan for the future with so much volatility - the meaningful vote pulled, the vote of no confidence in Theresa May all within 48 hours. Now speculation looms as to what will happen next. A general election? A second referendum? A No Deal Brexit? Who knows. The only game in town is uncertainty and it is indeed hard to plan for the future when the present politics feels so febrile.
We are constantly trying to scope out what happens next in BrexitLand, but the one scenario we had not expected emerged on Monday. Amid fears of a massive (and likely) defeat, May chose to delay Parliament’s vote on the Brexit deal, which was meant to happen on Tuesday of this week. It was a slap in the face of a Parliament that only last week had held the government in contempt. Speaker of the House, John Bercow, described May’s action to delay the vote, less than 48 hours before it was scheduled to take place, as ‘deeply discourteous’. He went further, arguing that “allowing the House have its say on this matter would be the right and obvious course to take”. With a government that has repeatedly avoided scrutiny at all costs, it came as no surprise that May did not even address Bercow’s advice.
Theresa May spent the rest of this week going around Europe in an attempt to extract further concessions on the contentious Irish backstop while also facing a vote of no confidence from her own MPs. And whilst she won that vote (and cannot be challenged for the next 12 months) it has further weakened her position and if anything the reduced the chances of getting her deal through Parliament.
What happens next?
The fact we are in uncharted territory was evident when there was conflicting advice about when and if the vote on the Withdrawal Agreement and the Political Declaration had to take place before the January 21. Indeed some suggested that now the vote could be held at the very last minute in March, leaving MPs pressured to accept the deal. The government has now confirmed the vote will happen before January 21 but again, the government said on a number of occasions the meaningful vote was definitely, 100% happening this Tuesday- until it didn't.
There has been confusion about the January 21 ‘deadline’ and what it actually means. Section 13 (7-12) of EU Withdrawal Act sets out that the parliamentary procedure of a No Deal scenario. If by the January 21, no agreement has been reached with the EU then a minister must make a statement on what the government plan to do next and Parliament would then have a chance to vote on those plans- in ‘neutral terms’. Grieve’s amendment passed last week, allowing MPs to table amendments to that neutral motion still stands. But some have questioned whether the requirement in section 13 of the Withdrawal Act still applies, given that an agreement has now been reached. What this means in practice is that then there is no actual legal requirement for the Government to hold the vote in January - and which then does indeed leave open the possibility of a last minute vote in March. But importantly, the 21st January appears, politically, to have taken root. See House of Commons Library excellent explainer on the issue here, useful threads from Brigid Fowler (Hansard Society) here and Jack Simson Caird (Bingham Centre Rule of Law) here.
It is hard to see what breaks the impasse on all this. The backstop is the issue but the very clear position in Brussels on Thursday night – at the time of writing– is that the backstop is not changing. If that's the case May remains where she was before the decision to pull the vote. And there is still the (outside) possibility of a no confidence motion in the government before Christmas….
EU leaders: withdrawal agreement not open for renegotiation
At midnight on Thursday President of the EU Donald Tusk issued a press statement confirming what had been trailed - no movement on the back stop.
The European Council reconfirms its conclusions of 25 November 2018, in which it endorsed the Withdrawal Agreement and approved the Political Declaration. The Union stands by this agreement and intends to proceed with its ratification. It is not open for renegotiation...… if the backstop were nevertheless to be triggered, it would apply temporarily, unless and until it is superseded by a subsequent agreement that ensures that a hard border is avoided. In such a case, the Union would use its best endeavours to negotiate and conclude expeditiously a subsequent agreement that would replace the backstop, and would expect the same of the United Kingdom, so that the backstop would only be in place for as long as strictly necessary.
Also late on Thursday night was the rumour that certain Cabinet ministers are arguing that the only way to break the log jam is to call a general election before March 29th. This is technically possible - possibly not advisable from Mays point of view - but it now the ONLY way to break the number log jam in parliament. Whichever solution or scenario you look at there is no majority for anything in parliament apart from possibly Christmas
Implementing the Withdrawal Agreement
Even if (and that’s a big if at the moment) Parliament votes to approve the deal there is still the important legislation actually needed to implement the Withdrawal Agreement. The government will argue that if Parliament accepted the Withdrawal Agreement in principle, there is no option but to pass the legislation. But many MPs sees the Withdrawal Agreement Bill as a further opportunity for more ‘meaningful votes’, so expect a bumpy ride through Parliament. The Institute for Government paper on the subject is well worth a read here.
Other Brexit legislation
The Leader of the House of Commons, Andrea Leadsom has announced in her Business Statement to the House that the Immigration White Paper will be published “next week before Christmas” shortly followed by the Immigration Bill itself. Meanwhile, the Hansard Society’s Brexit SIs dashboard shows that of the 700 statutory instruments that needs to be laid before exit day, only 247 has been laid.
Below is a grid of a rough Brexit timeline. For those saying that Brexit will be over and done with on March 29th 2019, may wish to think again...
Supreme Court Judgement on Scottish Brexit bill
This week also saw the Supreme Court ruling on the Scotland Continuity bill. The bill was drafted as an alternative to Westminster's EU Withdrawal Bill, which MSPs refused to give their consent to following a row over how powers currently exercised from Brussels will be used after Brexit (read our blog on it here). Scotland’s Brexit bill resulted in a legal dispute between the UK and Scottish governments, where the essential argument was whether the Scottish Parliament had the legislative competence to pass the bill.
In essence, the Supreme Court has ruled that the Scotland Continuity Bill was within competence of the Scottish Parliament when it was passed, with the exception of one section, which requires legislative consent from Scottish ministers for certain UK legislation.However, the court said the situation had changed since MSPs voted through the Scottish bill because the UK Parliament has since passed its EU Withdrawal Act.The court ruled that what counts is when a bill receives royal assent to pass into law rather than the situation when it was passed, and the Scottish bill can no longer go through because the UK one- the EU Withdrawal Act- has now superseded it.
GM Freeze: briefing on how the UK’s departure from the European Union (EU) could bring genetically modified (GM) crops to our fields and our food; why that
matters and what can be done about it. Available here.
Fawcett Society/ #FaceHerFuture: Brexit- six questions that remain for women. Read the briefing here.