The Cooper-Letwin Article 50 Extension Proposal – How Long For?

Arriving at a summit at Sharm El-Sheikh, the UK Prime Minister has confirmed that this week’s votes in the House of Commons will not include a vote to approve a revised Brexit deal. No ‘deal in the desert’ is set to emerge at this gathering of EU leaders. Instead the so-called ‘meaningful vote’ will likely take place on 12 March a matter of weeks before the United Kingdom’s scheduled departure from the European Union on 29 March 2019.

There may, however, be a vote of some significance if MPs vote on the plan promoted by Yvette Cooper and Oliver Letwin to seek an extension to the Article 50 withdrawal process, pushing back the date of the UK’s departure from the Union.

At the end of January, the House of Commons rejected Cooper’s original amendment that would have extended the Article 50 process to the end of the year. But as time has passed the likelihood of a need to request more time has grown.

With the exception of a ‘No Deal’ Brexit – which MPs rejected when they voted on the ‘Spelman amendment’ in January – any Brexit scenario is now going to need an extension of the Article 50 process.

If MPs had this week been presented with, and backed, a Brexit deal, the legislation to bring that deal into law in the UK – a 100-page European Union (Withdrawal Agreement) Bill – will take time to make its way through the legislative process. This sort of extension is what is sometimes described by the EU as a ‘technical extension’ and would be for a matter of months.

However, with the EU still waiting for clarity from the UK about what sort of deal could command a majority in the House of Commons, a more radical idea has been floatedof forgetting about a technical extension and instead pushing Brexit back to 2021. In essence this would mean abandoning a 2019 Brexit with a transition period to 2020 or 2021 during which a new EU-UK relationship would be worked out.  Instead the UK would remain a Member State while it decided what it really wanted by way of a future relationship with the EU.

A delayed Brexit of this length would avoid the problems of a shorter extension running into the May 2019 elections to the European Parliament. Remaining a Member State would mean that the UK would have to return MEPs in this year’s election notwithstanding that the number of MEPs allocated to the UK have already been redistributed to the other Member States.

Nonetheless, it would also beg the question whether the EU – contrary to the position it has consistently taken – would actually be prepared to negotiate the text of a future relationship without the UK having become a so-called ‘third country’. The key advantage of having a negotiated deal in place at the moment that the UK left the EU would be that it could avoid the need to have an ‘Irish backstop’ as an insurance policy while negotiations on a future deal that would also avoid a hard border were on-going.

While one can see the advantages of a delayed Brexit, it would have profound domestic political consequences.

It would accept that the May Government had failed to produce a plan for the future capable of obtaining a consensus or even a majority within the Commons. If the Prime Minister cannot get a deal over the line with a technical extension to implement it, it’s difficult to see how either she or her government could carry on. Indeed, one might even consider that an extension of Brexit to 2021 would be a pretext for an early election to allow a new government to seek to build a consensus on a different way forward. In that way, it would be a proposal that would play to the Labour leadership’s preference for a general election as a way of unblocking the Brexit deadlock.

Delaying Brexit would create a significant rift in the Conservative Party between those who don’t want any delay to Brexit even if that means a No Deal Brexit, and those who want a softer Brexit or even for the UK to remain in the EU. It would also be a significant boost to Nigel Farage and his Brexit party who would claim that Brexit was being frustrated, creating futher tensions within the other main parties.

For those who want the UK to remain in the EU, the longer the UK remains a Member State, the greater the potential to build momentum around a new referendum and a Remain vote.

It is readily apparent, therefore, that a lengthy extension to UK membership of the EU wouldn’t merely create an opportunity to define a vision of a UK future outside of the EU, it would fundamentally reconfigure the domestic politics of Brexit.

More immediately, this all presents a very important choice for a new Cooper-Letwin Article 50 extension proposal.

Any extension needs the consent of the EU27. If the EU has come to the conclusion that an extension is EITHER a short-term technical extension OR a more lengthy delay to Brexit, then the Cooper-Letwin proposal would need to choose between these options.

If they go for a short extension it would be tantamount to accepting that Brexit will be a variant of the current negotiated texts with a risk that a No Deal Brexit could still happen if MPs refuse to back the deal.

If they go for a longer extension, it would recognise that only a No Deal Brexit had been largely taken off the table with a No Brexit option remaining in play as well as a potential change of government.

Whie the Prime Minister could have lived with an amendment giving a technical extension, an amendment that would significantly delay Brexit would be difficult for the Government to support even tacitly.  It would also be difficult for the Labour leadership not least because of the intense pressure on Jeremy Corbyn following this week’s spate of MP’s resignations from the party. The Labour Party may say it wants a general election but it is not obvious it would win given the internal divisions within the party over Jeremy Corbyn’s leadership.

Once again, issues of time profoundly shape what sort of Brexit – if any – will result. The fate of the Cooper-Letwin initiative may well depend on how much time they think is needed for an Article 50 extension.

There may be no deal in the desert but the sands of time continue to trickle for the UK and the EU.

 

100 Days to Brexit -From ‘Branching Histories’ to Binary Choices

Forget the 12 Days of Christmas, there are now just 100 days remaining of the United Kingdom’s forty-six-year membership of the European Union. In the upcoming weeks, days and hours, critical choices will be made that will shape not just Brexit but every aspect of UK political, economic and social life in the years ahead.

Eighteen months ago I posted the following on this blog:

In the introduction to Brexit Time: Leaving the EU – Why, How and When? I quote from a blog post written by Dominic Cummings, the campaign director for Vote Leave. In that post, he describes a world in which events happen that change the future, but where those events happen in a ‘non-linear’ way. These are the ‘branching histories’ that take us down one road rather than another.

This was brought back to mind when listening to my Cambridge colleagues David Runciman and Helen Thompson discussing Brexit on their weekly Talking Politics podcast. In particular, David spoke of the narrowing of choices down to a moment when a binary choice will be apparent and a decision will be made that will define Brexit. Whereas the Cummings thesis is that moments of destabilisation and disruption produce an expanding set of political choices and options, the Runciman perspective is one of a gradual narrowing of those choices into a new moment of decision.

What is perplexing about our current times is that both dynamics – expanding and contracting choices –  appear to be possible at the same time.

With the production of a Withdrawal Agreement and a Political Declaration on the future UK-EU relationship in November, the range of options available to politicians seemed to narrow decisively. Indeed, the consensus from both the UK and the EU sides of the negotiations is that this is thedeal and it is the only deal on the table. And with anxieties about the Irish backstop continuing to put at risk the conclusion of the deal, the response from the EU has been to reiterate that the text of the agreement is not to be re-opened for further negotiations.The binary choice seems to be Deal or No Deal.

It is precisely because the Prime Minister’s Brexit deal looks unlikely to get the consent of MPs at Westminster – a realisation that led the PM to delay a vote on the deal until mid-January – that every potential alternative outcome – from a ‘No Deal’ Brexit to a ‘Norway Plus’ future relationship – now seems to be in play. The ability of the UK to revoke its Article 50 withdrawal notification is also now an option following the recent ruling of the Court of Justice of the EU. We seem to be generating more possibilities rather than narrowing the choices down.

But choices will need to be made and the sequencing of those choices will determine the outcome.

The first choice is for MPs to make: to approve or not to approve the PM’s Brexit deal.

This is a decision MPs gave to themselves when Parliament enacted the EU Withdrawal Act 2018. The Government cannot proceed to ratification of the Withdrawal Agreement without parliamentary approval of the legally-binding Agreement and the accompanying non-binding Political Declaration (setting out the direction that UK and EU negotiators intend to take to talks on the future relationship).

If MPs do not approve the Brexit deal, Parliament has no capacity to substitute its own preferred version of Brexit. It cannot enter into negotiations with the EU. It could try directing Government as to the deal it might want – something it perhaps ought to have done when empowering the Prime Minister to trigger the Article 50 withdrawal process – but it is hard to conceive how this could be done without Government backing for the legislation that would then bind the Government in its EU negotiations, nor is it obvious that the EU would consider going back to the drawing board. if MPs reject the deal table then – absent anything else – a No Deal Brexit cannot be avoided. So why might the deal be rejected?

For those who dislike the backstop provisions of the Withdrawal Agreement, a No Deal Brexit may seem preferable despite its implications for the Irish border and for the reciprocal protection of the rights of EU citizens in the UK and UK citizens in the EU. This is the view of those for whom any deal betrays the mantra of taking back control. If the objection is instead to the future UK-EU relationship contained in the Political Declaration, there is nothing to prevent a different type of relationship being negotiated once the UK leaves the EU. The Political Declaration does not bind either side to only one vision of the future. Choices can still be made including the option of Norway-style access to the Single Market whether or not combined with a Customs Union. Provided the Withdrawal Agreement is otherwise acceptable, it is less obvious why MPs would vote down this deal simply because they think a better future UK-EU relationship is possible. Like it or not, the smoothest path towards the UK’s departure from the EU is to accept this deal.

If the deal is rejected by MPs, the Government faces further choices.

There is a political choice about whether a new government is needed to take charge of Brexit. This could happen in one of two ways without a general election. Having survived a vote of no confidence in her leadership within her own party, the Cabinet could, nonetheless, force the PM to resign under threat of Cabinet resignations. After all this was how Margaret Thatcher was evicted from No. 10. The problem the Conservatives face is the absence of an alternative position or rallying figure around which Tory MPs could coalesce. Given that the Conservatives are running a minority Government, unless a new Conservative administration could be formed that could command the confidence of the Commons, the initiative could pass to the Opposition parties to form a minority government. Because of the riskiness of the political arithmetic entailed in running minority administrations, the better option might be to precipitate an early election under the Fixed-term Parliaments Act. Nonetheless, for the Conservatives the risk would be that Labour would capitalise on the Conservative’s mishandling of Brexit, while for Labour the risk would be that it inherits the Brexit problem weeks before the UK’s intended departure. Changing government at this time seems politically dangerous.

It is against this background that the option of a further referendum begins to make more sense. Mrs May could end up backing a referendum as a Hail Mary option to give voters the option of backing her deal, thereby forcing MPs to get in line with the electorate. For those who believe a No Deal Brexit – or ‘managed’ No Deal – is preferable to the Brexit deal, allowing voters that option also has some leverage. It may seem more acceptable to fall off the cliff-edge if the people give politicians the final push. However, it is impossible to conceive of the necessary referendum legislation getting through Parliament if all that is offered is a choice between Mrs May’s Deal or a No Deal Brexit. So perhaps contrary to David Runciman’s assumption that decisions inevitably move towards a binary choice, a third option of remaining in the EU could well be an option.

With three potential choices on a referendum ballot paper – and the risk that a split ‘Leave’ vote could allow a ‘Remain’ vote to win even if the combined Leave vote was greater than 50% – voters would have to be asked to rank their preferences. A referendum in these terms would have the advantage of allowing voters to express multiple preferences at least as regards where things stand now. It would not give voters an alternative deal to vote on but as explained above, accepting the current deal does not rule out alternative scenarios in the future.

In a previous blog post I came to the conclusion that a referendum on the options was preferable to an attempt by Parliament to manufacture a ‘least worst Brexit’. That was when we were 340 days from exiting the EU and before the UK Government and the EU agreed withdrawal terms. The political climate has deteriorated significantly to the point we are now at and we need to be honest that a referendum that selects any one of the available Brexit options also has destabilising consequences.

If the electorate backs the PM’s Brexit deal as delivering on the 2016 referendum, it will highlight the chasm between politicians and the people on Brexit. Voters will have done the dirty work that MPs appeared incapable of doing on their own. The erosion of faith in parliamentary democracy will accelerate.

Backing a No Deal Brexit would double down on a loss of faith in politicians to negotiate an orderly exit from the EU by engendering a significant shock to the UK, Irish and EU economies. The babble about a Brexit on WTO terms or a managed No Deal Brexit veers between the wholly inaccurate and the triumph of hope over reality. Crashing out of the EU will produce a political and economic crisis.

If Remainers content themselves with the belief that staying in the EU is a comfortable reversion to the status quo, they ignore that the status quo changed with the 2016 referendum. The genie will not be put back in the bottle. The political right – and its representation in the tabloid press – stands ready to claim that ‘our’ Brexit has been stolen from ‘us’. Don’t be surprised if the Yellow Vest movement makes an appearance on UK streets, filling the gap created by the UKIP implosion.

The Prime Minister has suggested that another referendum will damage democracy. The problem is more that democracy is capable of damaging itself, the political and economic institutions and the social order it sustains, and from which it is itself sustained. That process began with the 2016 referendum and could accelerate with another referendum. The flip-side is that the system of representative democracy does not seem to be working either.

Perhaps David Runciman is right after all. There are binary choices to be made that are about the choice of democratic process – parliamentary democracy or direct democracy – as well as about what form Brexit will take.

If Parliament takes the initiative and approves the Withdrawal Agreement and Political Declaration, it will have taken the options of No Deal and No Brexit off the table. If Parliament rejects the deal and leaves it to the electorate to decide, it seems highly unlikely a ‘People’s Vote’ would really be on the deal if it is the deal that MPs have rejected. In practice, even if there are three options on the ballot paper, the first preference selection would likely become a binary choice between a No Deal Brexit and No Brexit. A referendum would put back on the table what parliament could have taken off the table. That is the choice MPs must make when they return to the Commons in January.