Monday, 11 March 2019

Brexit – the End-game continues

(The horror film with endless dreadful sequels)

Plus ça change……… Cloud-cuckoo Land proves to have been just as inhospitable an environment for Theresa May as the real world. If the second “meaningful vote” goes ahead tomorrow [but see below], there would appear to be no good reason for those MPs who voted against the PM’s draft withdrawal agreement last time to vote for the unamended agreement this time.

Having repeatedly funked the chance to take control of the process away from this disastrously incompetent government, the House of Commons must vote to take over control of their Order Paper, so that in the perilously short time left before 29 March, the urgent steps needed to prevent the country crashing out of the EU without any deal on that date can be voted through. Merely passing another non-binding motion expressing their opposition to a ‘no-deal’ Brexit simply won’t cut the mustard. What is needed is an emergency Bill, which will have to be rushed through both Houses of Parliament, to cancel the 29 March leaving date and to instruct ministers either to seek a substantial delay to the Article 50 process or to revoke the Article 50 notice to the EU altogether, so that we simply stop the clock. Participation in the elections for the European Parliament in May will be a necessary part of this, and should not be resisted by any of our political parties. It is in the UK’s national interest to be fully represented in the European Parliament until we leave the EU (if we eventually do).

I have already explained in previous posts that merely requesting an extension of Article 50, especially if it is only a short one, will not solve the problem. There is in any case considerable doubt as to whether the EU would agree to only a brief delay, and they may not agree to an extension at all unless they are convinced that there is a good reason for it. Asking for a few weeks’ delay simply in order to continue arguing among ourselves about Brexit would clearly be a totally inadequate excuse for seeking an extension to Article 50. A long delay, perhaps for 21 months to the end of December 2020 (as Olly Robbins was famously overheard to say several weeks ago) is the only viable option. Frankly, a delay to enable a referendum or a General Election to be held are the only two scenarios that would provide a realistic basis for seeking an extension of Article 50. Failing that, formally ending the Article 50 process (which would not require the consent of the EU) is the only alternative.

The main fly in the ointment is the suggestion this morning that Theresa May might after all pull the three votes that were promised for Tuesday, Wednesday and Thursday, replacing the “meaningful” vote tomorrow with only a meaningless “provisional” vote. In view of the complete lack of progress achieved by ‘the Rumpole of Brussels’ (Geoffrey ‘Codpiece’ Cox) last week, and the reported deadlock reached in continuing ‘technical discussions’ over the week-end, it is perhaps understandable that No.10 is unclear as to what purpose would be served by putting May’s unamended deal back to the Commons tomorrow. However, a failure to do so, and to follow it up with the other promised votes (on the principle of ‘no deal’ and a delay to Article 50) would be an unpardonable breach of faith with the House of Commons, and could quite properly be categorised as a contempt of the House, bearing in mind that they were formally announced by the PM at the dispatch box. MPs’ collective patience has already been stretched almost to breaking point, and this might finally prompt a full-blown parliamentary revolt. It has even been suggested that in these circumstances the government could not be sure of surviving another vote of confidence in the Commons. In fact, now is the time for those ministers who forced the PM to promise this week’s series of votes to assert themselves to ensure that they still happen, instead of wimping out as they are all too prone to do.

The PM has chosen very unwisely to engage in a high stakes poker game with parliament and even with her own ministers over Brexit, and she has frankly forfeited any claim to loyalty that she might reasonably have expected from her ministers and from MPs. The time has come to set aside political calculations and to vote solely in the national interest, irrespective of the political consequences of doing so, either for their party or for their own political careers. If they fail to do so, any party or parties that are seen to have brought about or facilitated what promises to be a disastrous Brexit (if it is allowed to go ahead on 29 March) will face a terrible judgement by voters at the next General Election.

UPDATE 12.3.19: ………………plus c’est la même chose. Despite Theresa May’s last-minute dash to Strasbourg last night, “nothing has changed”, to use her own favourite phrase. The draft withdrawal agreement remains unamended. All that has happened is that the assurances that were contained in the letters of comfort that were published by the EU in January have been dressed up to look like something more formal, which the government claims makes them “legally binding”. But, as Keir Starmer pointed out on the Commons yesterday evening, they have no greater legal effect than the original letters of comfort.

So, when the Commons votes on the withdrawal agreement later today, they will be considering an unchanged document that still contains the Irish back-stop, and this will not be time-limited, nor will there be any mechanism that would allow the UK unilaterally to bring it to an end. Since it is very likely to take a good few years (maybe five, seven or even ten years) to conclude a final agreement on trade and other matters that will govern our future dealings with the EU, the Irish back-stop will take effect, and it will continue to operate potentially for an indefinite period, even though this is intended only to be ‘temporary’. I find it difficult to see how Geoffrey Cox can in all conscience change his previous legal advice in this regard.

I frankly have no problem with the back-stop, because it is clearly vital to preserve the Good Friday agreement. However, the withdrawal agreement will still make us rule-takers, rather than rule-makers. The political statement that accompanies the agreement gives only very vague indications of the aspirations of the parties as to the negotiation of the UK’s future relationship with the EU, and leaves us in a very weak negotiating position. There seems to be no logical reason why those MPs who voted against the draft agreement in January should vote any differently this evening. Realistically, however, the numbers voting against it today are likely to be reduced, and I don’t think anyone can predict whether the Commons will now vote the draft agreement through or not. The vote may prove to be quite tight. Watch this space!

UPDATE 11.30 a.m.: The bottom line (literally) of the Attorney General’s updated legal advice is that the legal risk is unchanged. He argues that there is a ‘reduced’ chance of the UK being held in the back-stop indefinitely and involuntarily but, in its essentials, what he is saying is that “Nothing has changed”. It seems highly unlikely that the DUP will be prepared to swallow this, nor is the joint ERG/DUP ‘Star Chamber’ of eight lawyers likely to find this situation acceptable. In the event, the chances of a government defeat this evening now seem to be somewhat greater than the glib assurances from the PM and her deputy appeared to suggest late last night.

UPDATE 13.3.19: By the time Geoffrey Cox’s legal opinion had been digested by everyone yesterday, it had become clear that Theresa May’s latest attempt to re-heat her failed withdrawal agreement was doomed to failure. But despite another crushing defeat in the Commons, it seems that the PM remains defiant. She is clearly the wrong person to be leading or managing this business, but at the time of writing there is no sign that she is prepared to step aside.

Today’s vote on “Deal or No Deal” will probably be passed by a huge majority, but it is clear from the ambiguous wording of the motion which the government tabled yesterday evening that merely voting against ‘No deal’ will not in fact prevent a car crash Brexit occurring on 29 March, even if the actual wording of the motion is amended in today’s debate. Simply passing motions in the Commons is not enough. Positive action will be needed to halt the Article 50 process, and to amend the 2018 Act in which the 29 March exit date is enshrined.

Both today’s debate and the debate promised for tomorrow on the possibility of seeking an extension to Article 50 are completely irrelevant. I don’t need to rehearse again the difficulties that may be encountered in negotiating an agreed extension – I have set them out in previous blog posts. Meanwhile the clock continues to tick down inexorably. .

I have become increasingly convinced that the only way to ensure that a disastrous ‘no deal’ Brexit is avoided on 29 March is to revoke the UK’s Article 50 notice altogether. This does not require the agreement of the EU (as explained in my brief article in this blog on the CJEU’s December judgment), and it would have the advantage of stopping the clock altogether, rather than temporarily postponing a problem that is unlikely to be solved within the limited timeframe that a postponement could offer. I have also previously discussed here the legal requirements for a valid revocation of the UK’s Article 50 letter of 29 March 2017, so these points do not need to be repeated.

After nearly three years, it is no longer sensible to regard the result of the referendum on 23 June 2016 as a current or valid expression of "the will of the people". Assertions that "the people have spoken" and that we must "honour the result of the referendum" are clearly nonsense in light of all that has come to light in the intervening period. So much has changed in the intervening period that the whole question of Brexit needs to be re-assessed in a calm and unpressured way. No doubt there will be some who will shout and holler about it, but when the fuss has died down, we can then get on with a more mature national debate about the whole issue. Another referendum will probably be needed finally to settle the matter, but to suggest that giving people a chance to vote on the issue in the very different circumstances that apply today is in some way ‘undemocratic’ is bizarre. Successive General Elections have been held at shorter intervals than this.

UPDATE 14.3.19 (A.M.): Trixie May was up to her tricks again yesterday, but through her manoeuvrings she only succeeded in turning what should have been a large majority for a government motion to take ‘No Deal’ off the table into another major government defeat. The problem was that the motion she had laid before the Commons involved a double negative that would effectively have nullified the effect of the motion. Unsurprisingly, back-bench MPs of both main parties combined to table amendments to convert the motion into the straightforward proposition that should have been tabled in the first place. One of these amendments, proposed by (among others) Tory MPs Caroline Spelman and Oliver Letwin and Labour MPs Jack Dromey, Yvette Cooper and Hilary Benn, stated simply that the House “rejects the United Kingdom leaving the European Union without a Withdrawal Agreement and a Framework for the Future Relationship” (i.e. on any date).

The Tory whips persuaded Caroline Spelman that her amendment would be ‘unhelpful’, and having had considerable pressure put on her by the whips, she informed the House of her intention to withdraw her amendment, only to be told by the Speaker that she could not do that; she could simply refrain from moving the amendment at the conclusion of the debate, but it would be open to any of the other MPs who were co-sponsors of the amendment to move it in her stead. In the event, the amendment was moved by Yvette Cooper and, although the government whipped their MPs furiously to vote against the amendment, it was passed by 4 votes.

In the face of this amendment the government then turned what had been promised on their side of the House as a free vote on the main motion into a whipped vote against their own motion (as now amended), with the bizarre result that Trixie May was now voting against the substantive motion that had been tabled in her name! Four cabinet ministers and a number of junior ministers abstained, rather than voting against the amended motion, and it was passed (against the government’s wishes) by 43 votes, thus piling yet one more humiliation on the unfortunate Trixie. But even the most sympathetic observer would have to admit that this really was a self-inflicted injury.

In the meantime, the Commons had decisively rejected the so-called ‘Malthouse Compromise’, which would have proposed a ‘managed No Deal Brexit’ (an idea which had already been summarily dismissed by the EU as unworkable).

But Trixie May still wasn’t giving up. She now tabled the motion for today’s debate, seeking the views of the Commons on a possible postponement of Article 50. This motion (no doubt drafted as a cunning plan by her chief political adviser, one Baldrick) was so convoluted as to be virtually unintelligible on first reading. Here again, though, the motion contains self-contradictory wording which suggests that Trixie May intends to have a THIRD go at getting her failed deal through the Commons next week. Several amendments have already been tabled, and we shall have to see which of these is selected by the Speaker. (One of them, supported by a large number of Brexiteers, seeks to rule out a second referendum. But what are they afraid of? Is it that the result of such a referendum might be to put an end to Brexit? If so, this shows a remarkable lack of faith in the project they hold so dear.)

UPDATE 15.3.19: The PM had a good day yesterday – she didn’t actually suffer any Commons defeats. But on the most critical vote she squeaked home by only the tiniest margin – a majority of just 2. This was on a cross-party amendment that would have allowed backbenchers to take over control of the agenda, and so prevent the government driving the bus over the cliff. The failure of this amendment is disappointing, but it may be re-introduced if the situation gets any worse in the next couple of weeks.

On a free vote, a delay to Brexit was then approved by a large majority. This was on the government’s unamended motion, which envisages a third vote on May’s deal next week. It is a measure of the chaos within the government and the Tory party that more than half of all Tory MPs, including eight cabinet ministers, voted against this government motion. One of these was the Brexit Secretary (Steve Barclay) who had only just wound up the debate for the government, strongly commending the motion to the House (!)

If by next Wednesday (20 March) May’s deal has not been passed, at the third time of asking, yesterday’s motion authorises May to seek an extension to Brexit. If May does succeed in getting her deal passed next week, she will need a short ‘technical’ extension to 30 June in any event, in order to get the necessary legislation through both houses of parliament. The motion recognises, however, that in the event of May’s deal not being passed, a significantly longer delay will be required, and that the UK may then have to participate in the elections for the European Parliament in May.

The attitude of the EU to a delay, beyond a brief ‘technical’ delay, is far from clear, and a wide range of contradictory views has been expressed by European leaders. The issue will no doubt be raised at the EU summit next Thursday and Friday (21 and 22 March) where it should, if possible, be settled. However, it requires unanimity on the part of the 27. Failing an agreed extension, the 29 March deadline for Brexit still applies, and in that case the government really would have to bite the bullet, and unilaterally revoke the UK’s Article 50 notice, as the only way to stop the clock, and prevent a disastrous car crash Brexit at the end of this month.

[Don’t miss next week’s exciting episode!]



  1. Replies
    1. Ah, vous avez raison, mon ami. Maintenant, je me reviens. Je vais le changer.

  2. C'est un cul de sac, mon cher

    Del Boy Trotter 😁

  3. Martin

    I just wanted to voice my appreciation for your witty and insightful commentary on all of this. Please keep it up!

  4. Excellent. Though an "emergency Bill" is not the only way of deferring the legal deadline on Brexit: under section 20(4) of the European Union (Withdrawal) Act 2018 a Minister may do it by regulation, provided that the Article 50 notification is changed first. The regulation is subject to affirmative procedure in both Houses (Schedule 7 paragraph 14).

    1. This comment has been removed by the author.

    2. More haste, less speed. There were too many typos in my first reply, brief though it was.

      I am grateful to Marc for this comment, and I now realise that an SI is the way forward here. The government now seem to recognise that they must lay an appropriate SI in sufficient time before 29 March.