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Quickfire Q&A: what could happen with Brexit this week?

*** Updated 27 March 2019 at 13.51 ***

Image credit: REUTERS/Stringer

As the Brexit deadlock continues, the next few days could prove to be decisive. The EU granted the UK a two-week delay to leave the EU, beyond the original 29 March 2019 exit date, so Prime Minister Theresa May is under pressure to reach a resolution.

If May tries to bring back her twice-defeated Brexit deal to Parliament again, and it is approved by MPs, the UK will leave the EU on May 22. However, if not, the UK will have until April 12 to find a new solution or exit the EU without a deal.

In a quickfire Q&A with Thomson Reuters Legal Insights Europe, Anneli Howard, Barrister at Monckton Chambers, who specialises in EU law and Brexit, has provided her views on the state of play and what could happen next.

Ahead of a potential third vote this week, could the Speaker of the House block the vote again? If the vote is blocked, what are the next steps? If the vote proceeds, what is the likelihood of it being approved by MPs?

We are in unchartered territory where no one can predict events. Section 13 European Union (Withdrawal) Act (EUWA) was intended to deal with the situation of the deal being rejected, but does not envisage this unprecedented situation. The Speaker may block the PM’s deal being put to ‘meaningful vote 3’ (MV3) if he considers there is no significant change. It depends on whether the extension and this week’s events in Parliament are treated as a material difference.

The latest indication is that MV3 will go ahead symbolically on Friday 29 March (possibly with Kyle amendment for a ‘People’s Vote’), but, at present, it looks likely to fail for the third time. That may change. It will come down to the extent to which the various Leave camps consider that they can take control over the contents of the Political Declaration (“PD”). That part of the Withdrawal Agreement is not binding and subject to change. Brexiters may consider that, if May offers to resign, they can replace her with a hard Leaver who, once we have left, will then negotiate under the Government’s treaty making prerogative for a harder version of Brexit or force a no deal scenario by December 2020.

Conversely softer Brexiters may think they can live with the divorce arrangements in the Withdrawal Agreement and substitute the PD for a softer version of Brexit, based on a Norway style arrangement. As a new Treaty, the exercise of the Government’s prerogative may not require the same degree of Parliamentary scrutiny.

The EU has said it would allow for a technical extension until 22 May 2019, for the UK to leave the EU, on the condition that May’s Brexit deal is approved in Parliament next week. But if the deal is rejected by MPs, what are the likely next steps?

Regardless of MV3, the key gamechanger will be whether the MPs are permitted to put forward alternative options as part of the Letwin indicative votes process. That business motion is being challenged. There are 16 proposals (numbered A-P)—from Labour, cross party, The Independent Group, Liberal Democrats and the Leave factions across Parliament. Assuming it goes ahead, the Speaker will select which options are put forward, which range from:

  • Leaving with no deal;
  • accepting the WA with a revised backstop;
  • Labour amendment for close dynamic alignment with single market and permanent customs union;
  • Common Market 2.0 – EEA Agreement plus customs arrangement
  • Norway – EFTA/EEA only – no customs.
  • Customs only – no single market;
  • Revocation and Remain; and
  • Confirmatory Peoples Vote.

It is clear that MPs will now seek to wrestle control of Parliamentary process away from government and seek to dictate the agenda. Whether that produces cross party consensus or paralysis remains to be seen.

There are reports that some of the 27-member states would be open to a longer extension. If a longer extension were agreed, and May was agreeable to take that avenue, what options would be available to resolve the current impasse?

My personal hunch is that the EU would grant a longer extension, but they would need to see a positive plan of action. They can also set the terms of any extension proposal. The UK cannot sit on the fence and buy time anymore. The EU is quite understandably running out of patience. Whilst they sympathise with our constitutional breakdown and midlife crisis, they have much more important projects to be getting on with.

So, we need leadership to take us forward—ideally seeking reconciliation and consensus. It may be May or a caretaker or a new government, if there is an election. In any event, I think resolution will need a longer extension of one-two years to comply with due process while we sort our issues out. That would mean that the UK has to participate in EU elections.

If an extension agreement isn’t reached with the EU, and a deal isn’t passed in Parliament, could May’s hand be pushed to withdraw Article 50 based on the rejection of ‘no-deal’ Brexit by MPs? Or is May able to unilaterally make the decision to crash-out of the EU without a deal?

On the literal wording of Article 50, the Prime Minister doesn’t need to take any decision to leave without a deal—the government can just allow the sand to drift out of the timer. However, it is doubtful whether that is in conformity with the UK’s constitutional requirements when Parliament has expressed a clear intention that it does not want no deal. The Spelman motion, in which Parliament was recently able to express this view, would have been binding had the government not substituted their own non-binding version at the last minute. That raises interesting questions whether Article 50(3) can ‘bite’ if the UK is not complying with due constitutional process.

Parliament’s rejection of both no deal and May’s deal does not lead automatically to revocation. But it should mean an extension with time to explore alternative options in line with our constitutional principles. It could conceivably involve going back to the electorate to determine exactly what the will of the people is now that people are more informed.

A petition on the Parliament site calling for Article 50 to be revoked has received over 5 million signatures. Other than being a sign of people’s frustration, and a call for a debate in Parliamentcould a vote be called for revoking Article 50? What would be the next steps, if Parliament voted to withdraw Article 50?

At the time of writing, the petition has reached nearly six million and over one million took part in the march calling for a ‘People’s Vote’. An amendment has been put forward for revocation of Article 50 which, if selected, will be debated. Assuming there is sufficient political will within the Commons for it to pass, revocation would be simple. The Court of Justice of the European Union in Wightman confirmed that there are no particular formalities or conditions. It does not require unanimous approval by the EU27. The PM could simply send an email to the EU Council before 11pm on 12 April.

However, there may be additional steps to implement it—it would require a Statutory Instrument or Act of Parliament to repeal the EU Notification Act and EUWA and secondary legislation and reinstate the 1972 Act. Likewise, the European Economic Area Agreement for access to the single market.

What is the likelihood of leaving the EU with no-deal?

At this point extremely high black alert – whether now or at a later date by December 2020.

Acceptance of the Withdrawal Agreement will not resolve those conflicts and the differences will continue throughout the negotiation of the future trade agreement, which is far more complicated than the three divorce issues in the Withdrawal Agreement. If no FTA is concluded at the end of the negotiations, we could still leave the EU on WTO terms and it is unlikely that we would be able to complete negotiations for other global FTAs in the meantime.

Any difference in outcome will depend on the constitutional battle between our Legislature and the Executive during these coming weeks, the courage of MPs to act in the nation’s best interests and overcoming voter apathy.

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