So what happens next?
Theresa May will remain as Prime Minister for now, provided that she is able to agree a ‘confidence and supply’ arrangement with the Democratic Unionist Party, whereby their ten ministers offer support to a minority Conservative government on a vote-by-vote basis.
If May does seek to push ahead with her manifesto pledges on Brexit, it is likely that she would need the votes of other parties who have largely rejected her hard Brexit plans. Despite the lack of detail in the Labour manifesto, their priorities for Brexit – jobs and the economy – do contrast with the Conservatives’ approach that called for withdrawal of the single market, customs union and jurisdiction of Court of Justice of the European Union (CJEU).
In order to implement Brexit, the new government will probably need cross-party support to get one of the most complex and divisive legislative programmes through two chambers of Parliament. Included in this legislative programme is the Great Repeal Bill, which, as the name suggests, will repeal the European Communities Act 1972 and aims to ensure that European law is no longer applicable in the UK and to provide legal certainty following Brexit by ensuring that, as a general rule, the same rules and laws will apply after Brexit as they did before, so there are no gaps in the UK’s statute book. The government intended to introduce the Bill in the 2017 Queen’s Speech on 19 June, however given the current uncertainty, the Queen’s Speech will now be delayed for a few days.
(For an analysis of some of the main points of the Great Repeal Bill White Paper, see Practical Law’s Article, Brexit and legislating for withdrawal: two steps forward…).
Even if Theresa May could reach the point where she successfully passes the myriad laws needed before Brexit, and then agrees a deal with an EU in a far stronger bargaining position, a final settlement would have to be put to a vote in a House of Commons with no united position.
Once the negotiations are underway, it is possibly that Theresa May could then step down (or be compelled to do so) and call another general election, and a Conservative leadership race. Given that Germany is due to hold Federal elections in September, Theresa May could see an opportunity to minimise disruption to the negotiations and call a UK general election at a similar time. Such a timetable would come with risks depending on whether the negotiations up to that point had been amicable. Given the EU’s insistence on discussing the rather large financial settlement first – a source of dispute for the UK – and the risk that this could lead to an early walk-out, it is not inconceivable to imagine bitter, acrimonious rhetoric being dialled up for German and UK election audiences, which could further jeopardise the negotiations.
Of course, there is uncertainty as to whether there would be public appetite for another election. The feeling in Parliament could be mixed, however. The Labour party is likely to be emboldened and, looking to build on their success, could seek to undermine the Conservatives, particularly if Theresa May’s position within her party becomes weak to the point of being untenable. A stumbling block to all of this is the fact that the Fixed-term Parliaments Act 2011 is still law and so a two-thirds majority of Parliament would be needed to force another election, which may not be easily achieved, if at all.
The EU’s position is likely to be largely unchanged by the outcome of the election, though they will not be immune to the uncertainty caused. Their biggest concern will be any delay in the UK forming a stable government. The EU has accepted the will of the British people and began preparing for Brexit as soon as the referendum result was declared; they are keen to start the talks as soon as the UK is ready. However, what those negotiations might entail now becomes slightly murky. A minority government places doubt on the UK’s initial negotiating position. Will membership of the single market be back on the table? Will freedom of movement? Will acceptance of the CJEU’s jurisdiction?
Within her own party, Theresa May will face political obstacles from both the Remain and Leave camps. Those on the Remain side may see the election result as a rejection of her hard Brexit plan and may demand concessions and compromise; the Eurosceptic wing of the Conservative party could see it as one final chance to ensure that Brexit is achieved. Theresa May could find it incredibly difficult to keep on board the hard Brexiters in her party if she makes concessions they cannot accept. A confidence and supply arrangement with the DUP provides the Conservatives with slightly more support for its Brexit stance, though a tiny majority in Parliament ensures nothing will be easy. Arlene Foster, who heads the DUP, has said she wants to avoid a hard border with the Republic of Ireland and doesn’t want the hard Brexit that has been spoken of by Theresa May. However, both the Conservative and DUP manifestos promised to maintain the Common Travel Area and as frictionless a border as possible between Northern Ireland and the Republic of Ireland, so there is definitely some scope for agreement.
In the event of another election, the Conservative party could be hamstrung by infighting over what kind of position to take on Brexit. The leader of the Scottish Conservative party, Ruth Davidson, who is credited with securing 12 seats in Scotland, has called on her colleagues to revisit Brexit plans and consider an “open Brexit”. Similarly, the Labour party also holds different internal positions; ostensibly, it is maintaining its current ‘Conservative-lite’ Brexit position and also calling for an end to freedom of movement and withdrawal from the single market, although there are voices within the party and among Labour voters who would prefer a soft Brexit. Where the Labour party differs from the Conservative party is its position that leaving with “no deal” is the worst possible option to the UK.
(For more information on the main parties’ ley policy statements and manifesto pledges relating to Brexit, see Practical Law’s Article, General election 2017: manifesto priorities for Brexit).
Even if the Prime Minister (or any successor) retains support for her position throughout the negotiations, the enormousness of the task, which doesn’t seem to have been grasped by many in government, could give the negotiations a Sisyphean feel. Whatever happens, the two-year period for negotiations has begun and we’re already nearly three months in. Should the government require an extension to those talks, a request must be made to the EU. A formal EU decision would be needed to pause the Brexit clock, which wouldn’t easily be granted. Indeed it could require the UK to put itself in a much weaker negotiating position than it had even before the election. Whether or not Article 50 could be revoked, unilaterally or not, is unclear – there is no mention of revocability in the Article. Unilateral revocability is such a sensitive political, as well a legal, issue that it would be an almost impossible option for the UK.
It could be in the interests of the EU to provide the UK with an extension of the negotiation timetable given that member states are affected by the uncertainty of Brexit. However, the EU will be keen to retain its strong negotiating position and accepting that the EU needs a stable UK could weaken that position. Indeed, Donald Tusk indicated that there is little appetite for an extension of the Article 50 period when on the morning of the election result he tweeted: “We don’t know when Brexit talks start. We know when they must end. Do your best to avoid a “no deal” as result of “no negotiations”.”
The kind of deal that could be reached, whilst never really clear, is still far from certain. The chances of a disorderly Brexit culminating in the UK crashing out of the EU with no deal are still high, if not higher as a result of the election. Political impasse could endure throughout the Article 50 period, leaving the UK with no consensus for a final deal.
In the event of a disorderly Brexit, one possible solution for the UK could be a Norway-style EEA arrangement, whereby the UK remains a member of the single market, must accept the EU’s four freedoms and must remain subject to a large bulk of EU law. Obviously this wouldn’t meet the stated objectives of the UK, but may work as a transitional arrangement. There would then be the small matter of selling that to the British public, though by that point, economic indicators could have worsened to such a degree that the British appetite for a hard Brexit, or even a ‘no deal’ scenario may have significantly decreased. British opinion on this could of course be dependent on how the UK government of the day would have sold the breakdown in talks to them: if they accept their shortcomings and honestly speak of the dangers of a bad, or indeed no deal, then the public may accept whatever most common sense option is presented.
If, and this wouldn’t necessarily be unlikely, anti-EU rhetoric is dialled up, not least by elements of the press, and the perception is that the UK is being held hostage by the EU, then the government may find it difficult – or even impossible – to persuade the public to accept a transitional deal, especially if that government wishes to seek re-election at any point. In any event, finding agreement will not prove to be an easy task.
Should there be no consensus on key issues surrounding the negotiations the decision may even be thrown back to the voters, either through a second referendum or a repeat election. Neither of these options would make for a less complicated and messy Brexit.
Whatever happens, it seems we may hope for a smarter Brexit – more consensus, more compromise and, hopefully, fewer empty slogans. Then again, we could be on the path to discovering whether no deal is better than a bad deal.
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