Brexit process

[UndercoverElephant]

Robert Peston wrote:

You may have thought the vote in Parliament on Tuesday night was an important moment and deadline for how and whether the UK leaves the European Union.

I did. But I was wrong.

Because tomorrow the prime minister may decide to pull the vote (which she can do pretty easily, I am told by a minister, because of the way the motion for the vote is worded).

She will do that, her colleagues inform me, if she is facing defeat by the kind of colossal margin that would completely undermine confidence in her ability to govern - so more than 100 votes. And right now, the margin of her personal humiliation looks considerably greater than that.

So what would it mean to pull the vote?

Well there is zero chance of her securing the kind of concessions from EU leaders this week at the regular EU council meeting that could turn that scale of Commons defeat into victory.

Sources in European capitals say the most EU government heads could offer would be some non-binding warm words about how they, like the prime minister, hope that the so-called backstop - so hated by Northern Ireland's DUP and Tory Brexiters - will never be implemented or will be of short duration.

Such friendly and supportive words will not turn the DUP and Tory Brexiters from enemies of the Brexit plan to its supporters. All they care about is the legal text of the Withdrawal Agreement. And absent that being opened up and changed - which it won't be this week - they will continue to stand in implacable oppositions to her Brexit plan. So what can and will she do?

Well - and please move away from the ledge (NOW!) - she could try to re-open negotiations with the EU in a more fundamental way over Christmas and in January.

Because the hard deadline for her is in fact 21 January - which is when (under yet another successful Dominic Grieve initiative, enshrined in the EU Withdrawal Act), if there is no agreed deal, she is obliged to present a plan to parliament about what on earth she does next. Now it is possible that her own Tory Brexiter MPs will not tolerate her shelving the vote. They want her plan dead and dead now. So they may - finally - see any further prevarication as all the cause they need to try and oust her.

That is the big risk for her, personally.

If she is to keep them on side, she may have to claim that she has been converted to their cause (yes I know that seems implausible). One idea - put to me by a Whitehall rather than political source - is that she could tell the EU that unless the EU abandons the backstop, the UK would simply leave the EU on 29 March without a transition and via what is known as a hard Brexit, BUT that the UK would refrain from imposing any checks at its borders, either in the island of Ireland or at any of Great Britain's ports.

This would call the EU's bluff: it would mean that if Brexit were to be chaotic and economically disastrous, and if the border in Ireland were to harden in a way that promoted crime and terrorism, that would be at the EU's discretion, not the UK's (it's not a million miles from the tough negotiating stance currently being used by the Swiss, in their attempt to ward off the EU trying to give a greater role to the European Court of Justice in adjudicating single-market disputes - but the Swiss have less to lose than the UK).

This would he the ultimate in hardball negotiating, by May (so yes, implausible again).

It would keep onside most of the Tory Brexiters. But it would probably alienate a majority in parliament, because of the risk that it could all go horribly, appallingly wrong (it could lead to a disastrous Brexit, and could also damage diplomatic relations between the UK and EU for years to come).

The point, which you surely know by now, is that there is no Brexit available that doesn't alienate at least one constituency deemed important by the prime minister.

She attempted a Brexit whose explicit aim was to reconcile irreconcilable groups (Brexiters and DUP on the one hand, Remainers on the other; the EU 27 and Brexit voters). That failed. Her negotiated plan is in the dustbin of history.

To Brexit is to choose. May can duck her choice no longer (or at least not for very much longer!).

Now that (my bold) is a plan that might just work. Will totally f*ck off the EU and they'll hate us for decades to come, but only after they've backed down and accepted the backstop being removed from the WA.

[UndercoverElephant]

How about this for an outcome...

May's deal gets destroyed on Tuesday, and feedback coming into May from numerous directions is telling the Government that No Deal is going to be so bad it might destroy the tory party, because of the direct economic and political damage.

How do they get out? Referendum turns out to be impossible, partly because of time and partly because of the impossibility of deciding question/format that everybody will regard as fair and legitimate.

They could revoke A50 without a referendum or vote in parliament, but this would both irretrievably split the tories and cause much wider political damage. They'd want to share the blame, and responsibility.

Solution: put a bill before parliament asking it to decide, in a free vote on all sides, between no deal and revoking A50.

The result might be close, but remain would almost certainly win. Serious split in the tory party results, new party leader elected. One half lurches to the right under Raab, swallowing up UKIP, the other to the left under Rudd.

General election soon follows, Corbyn wins easily because the tory vote is hopelessly split all over the place.

[UndercoverElephant]

BBC currently reporting that May's spokesman is saying the vote will definitely go ahead, while two cabinet sources have said it is going to be pulled. This is total chaos.

[Lord Beria3]

Good eurointelligence briefing which covers the EU view of this mess...

ECJ says UK free to revoke Article 50, even inside extension period

The European Court of Justice agreedwith the advocate generate and went further by allowing revocation to happen even inside any extension period. This was one of the open questions. Readers should focus on this because it will constrain the policy options go forward. It is best quote the ruling itself:

"That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired."

This ruling is a clear victory for those who have campaigned for a Brexit revocation, but it is not clear that it will make much political difference. We now know that it is possible, and that a second referendum would have a legal basis in European law. One important obstacle to this process has been removed.

What does the ruling say about the option of revoke and relaunch Article 50? The press release does not go into the subject of good faith - as the advocate general did in his reasoning. We simply do not know at this stage how to interpret the ruling in this respect - revoke and re-trigger Article 50 is unlikely in our view, in any case.

Tomorrow's scheduled vote in the House of Commons is giving rise to the biggest political uncertainty in UK politics since the mid-1970s. Theresa May's political demise could be close, but it is also possible that the EU may throw her a lifeline. Wolfgang Munchau writes in the Financial Times that the EU could offer three specific actions. The first and least controversial would be to open up the political declaration and to allow alternative future relationships, like the Norway option. But he argues that the heavy lifting will have to come from two other measures. One is a re-negotiation of the Irish backstop to protect both sides against foot-dragging by the other side, and to provide a more credible procedure to avoid the prospect of a permanent lock. This is a genuine concern, politically as well as legally. And finally, the EU will need at one point to rule out any readiness to extend Article 50. For so long as Remainers believe that they can get a second referendum if they reject the deal, there can be no majority in a favour of a deal. 

Will this be enough to save May? The weekend has been full of speculation that she could postpone tomorrow's vote, as the Daily Telegraph reports, and of an imminent leadership challenge if she loses, as the Times writes. 

The Times writes that the previously elusive 48 letters are likely to come in this week. We argued before that the lack of a successful challenge in the past should not be read as a sign of the rebels' weakness. They retreated tactically because they were not in a position to defeat May four weeks ago. 

It is unusually hard to predict the course of events given the large number of possible scenarios. It is also possible that the PM might resign; or that she calls elections in the event of a big defeat. Or that she goes back to Brussels to renegotiate the deal, with a demand for the Irish backstop to be dropped or amended, which would drag the process out well into the new year. 

Alternatively, she could put her weight behind a second referendum. But we don't see the maths for it. If she did, there would be an imminent leadership challenge, which she may lose. If tomorrow's vote goes strongly against her, Labour might bring a confidence motion against her government. One theoretically possible scenario would be a government of national unity, or what the Italians call a governo tecnico. But we struggle to see why Jeremy Corbyn would support it. He made it clear over the weekend that he first wants to get into power, then re-negotiate Brexit from a position of power. This makes sense to us.

As ever, it is best to assess uncertain situations like these in terms of the protagonists' best interests. May cannot conceivably retreat from a deal that has been the one and only achievement during her two years in office. She could re-open the negotiations and take the issue to the brink, and maybe she could survive a no-deal Brexit. We struggle to see her interest in a second referendum as this would split the party and raise the risk of a leadership challenge beforehand. There is also not much support in the public for her deal. Corbyn has an interest either in immediate elections, or in the threat of a chaotic no-deal Brexit that would drive moderate Tories to the Labour Party. 

[UndercoverElephant]

Tomorrow's scheduled vote in the House of Commons is giving rise to the biggest political uncertainty in UK politics since the mid-1970s.

Already out of date. Vote has been pulled.

Rumours coming out of Downing Street that there's going to be a second referendum.

https://twitter.com/PippaCrerar/status/ ... 5558743040

Number 10 insiders tell me they think a second referendum is on the cards. "We’re not preparing for it and she doesn’t want it but it might be the only way. We think that’s where we’ll end up".

[UndercoverElephant]

It gets more incredible...

Laura Krapberg now saying:

Not trying to make your head explode, but there is a possibility that the govt might not actually be able to pull the vote - at least not without an enormous parliamentary row - (checks Erskine May)

Apparently the only way they can pull the vote is if either there is a vote to pull the vote (which the government would surely lose) or if the government filibusters its own vote out of the commons. Quite extraordinary.

What a finale for May this could be - brought down by the biggest defeat in parliamentary history, in a vote she called, then tried to pull, but couldn't.

And now:

Not impossible that Labour will work with ERG to vote against the govt pulling the vote - yes you read that right - govt might lose the vote they might need to win to pull the big vote

[fuzzy]

You are assuming that she doesn't have her ducks lined up:

Un passable political deal thrown out.

PM leaves, so she is out of the flak

Basic no deal brexit, which the swivel headed whitehall/MP scum would not have chosen.

Almost no problems.

Obviously impossible to guess how well the country will be in 10 years, whatever the outcome.

As I have posted before, there are absolutely more job vacancies for Brits now than there was a year ago.

[UndercoverElephant]

You are assuming that she doesn't have her ducks lined up:

Un passable political deal thrown out.

But that was supposed to happen today. Very powerful forces conspired to make sure it did not. This is a complete mockery of British democracy. A very dangerous game is being played, presumably to attempt to make sure that May's deal is eventually accepted, and Corbyn kept out of power. They are going to kick this can right to the wire, while making no preparations for no deal. Then at the last moment parliament will have to choose between the deal and cancelling brexit.

For once I am going to agree with Steve: unless either the tory party removes this monster of a prime minister, or parliament does, we are heading towards a situation not unlike the one in France right now. They cannot get away with this.

[RevdTess]

But that was supposed to happen today. Very powerful forces conspired to make sure it did not. This is a complete mockery of British democracy. A very dangerous game is being played, presumably to attempt to make sure that May's deal is eventually accepted, and Corbyn kept out of power. They are going to kick this can right to the wire, while making no preparations for no deal. Then at the last moment parliament will have to choose between the deal and cancelling brexit.

I agree. This does seem to be the plan. The longer May can delay, the less plausible other options become. She knows the Tories and DUP don't want to remove her while there's a chance of getting rid of the NI backstop, and the Tories and DUP don't want a general election either. So there's really nothing the opposition can do except wait to vote down her deal. Eventually it will be too late for anything except May's deal to be prepared for, so it becomes Russian Roulette - take the deal or risk the no-deal abyss with no time left before March 29th for any new referendum or renegotiation of a softer brexit that might have cross-party support.

It's impressive politics from May, but massively divisive. It's just pure power-play with no effort at consensus. Almost every MP wants to vote down the plan so they can argue about alternatives, but May is trying to make every alternative impossible so that her plan is the only option. It's horrific to watch.

[Lord Beria3]

Summed it up in one tess!

[stumuz1]

It's impressive politics from May, but massively divisive. It's just pure power-play with no effort at consensus. Almost every MP wants to vote down the plan so they can argue about alternatives, but May is trying to make every alternative impossible so that her plan is the only option. It's horrific to watch.

Very good analysis Tess.

You certainly have not lost your old day job skills!

[kenneal - lagger]

............
It's impressive politics from May, but massively divisive. ...............

Given the emotional attachment of most Remainers to the EU, and it is emotional attachment rather than any thought about long term issues as far as I can see, and the hatred of the fascist institution that is the EU of many Leavers I don't see how there can be any compromise, Tess. We can't be half in and half out which is what is being proposed. May is playing at being the Grand Old Duke of York at the moment but it is not sustainable.

[Lord Beria3]

Eurointelligence latest... key takeaway is that the EU is likely to assist May in getting the deal, which is after all an EU deal as much as Mays, through by killing off a 2nd referendum.


The Brexit process will go down to the wire - all the way into 2019

The ultimate outcome of Brexit is uncertain, but we are now back in the scenario we had previously expected: it will go down to the wire, all the way into next year and possibly right up to the March 29 deadline.

Theresa May pulled the parliamentary vote she would have lost, and is going back to Brussels to re-negotiate, just as we predicted yesterday. The EU said immediately - and rightly - that it will not re-open the withdrawal agreement itself. When pressed on this issue, May did not comment nor say she would reopen the agreement, so we are now looking at a Council declaration to clarify the agreement's provisions. This is what the European Council did to overcome Dutch opposition to the EU-Ukraine association agreement. It drafted a separate declaration saying that this agreement was not a precursor to future membership, and that it did not entail security guarantees or lead to financial assistance. A Council declaration is binding, but it is also true that in a legal case the ECJ would give precedence to the agreement over the clarification. It is one reason why this procedure might not be enough to swing a majority of MPs behind the withdrawal agreement. And this is why we think it will go down to the wire.

The UK government is seeking a binding declaration that the backstop period cannot be permanent. This does not equate to a right by the UK to end this period unilaterally, which would constitute an abrogation of the backstop. But the language would have to include some kind of process, as well as a definition of "finite" not necessarily in terms of years but in terms of procedures. For instance, if the UK and the EU were to agree a trade agreement in 2020, but this agreement is not ratified three years later, it would be reasonable to conclude that the EU is not delivering on a trade agreement. There would have to be clarification that the UK would, under such circumstances, be able to end the backstop period. We think it is going to be hard to nail this in a document, except in very broad terms. So the issue of re-opening the withdrawal agreement will probably come up, especially if the declaration is not enough to secure a majority - which we don’t think it will be.

Another reason why we expect this process to go down to the wire is that the parliament yesterday decided that the statement given by Theresa May supersedes the requirement under the first Grieve amendment to notify parliament by January 21. The government says it wants to stick to that commitment, but this deadline is now gone. This is why we would urge readers not to rely on a superficial knowledge of parliamentary procedure, and to extrapolate future events based on possibly misleading assumptions. Another example was the frantic discussion ahead of yesterday’s official delay on whether the parliament might actually be able to stop May pulling the vote. In the end nothing happened, except for comment by the Speaker of the Commons that the decision to pull the vote was regarded as discourteous. Never underestimate the powers of the British government to control the agenda of the House.

Is it possible to make predictions? Not really, but a negotiated deal still remains the most likely Brexit outcome as the illusion of choice evaporates in the final stretch. The EU will at one point have to foreclose on the second referendum option, by refusing a Brexit extension for the purpose of holding another referendum. At the moment the pro-EU crowd is split between support for a second referendum, support for alternative Brexit deal, and support for May’s deal. Those three groups will have to unite - and the EU will have to play its part to push for this.

Wolfgang Munchau writes: I am wondering whether readers have ever noted the tendency in Brexit discussions to resort to the passive voice: a no-deal will be stopped, or variants thereof. It is worth asking: who exactly stops it? In journalism school we were taught that the passive tense either hides a lack of knowledge or signals a wilful act to hide an unpleasant truth, or both.

So now let’s try to put this statement that a no-deal Brexit will be stopped into the active voice. First there will have to be a robust parliamentary majority to stop the default option of a no-deal Brexit. Robust does not mean big, but strong enough to carry through the entire process - not just passing a parliamentary motion. Parliament can stop a no-deal Brexit through the following procedure: it passes a vote of no-confidence in the government. It could then persuade Jeremy Corbyn and the rest of the Labour Party to unite on this procedure or, alternatively, it could use the provisions of the Fixed-Term Parliaments Act to install a technical cross-party administration with the sole task to conduct the referendum. This new government would ask the European Council for a delay; the European Council would have to grant the delay unanimously; the government would introduce the legislation for the referendum and the necessary legal changes to the withdrawal act and the repeal act to extend the deadline; the referendum would be held, and the result implemented. Alternatively, it is conceivable that the robust parliamentary majority would try to drive this entire process from the backbenches and force a reluctant government, maybe with the help of the supreme court, to implement the policies against its will. Such a government would resign, or try to assemble a majority for new elections. The provisions of the Fixed Term Parliaments Act would kick in. Back to the above.

And just consider the political dynamics of such a parliamentary putsch. Do we really think the ensuing referendum would be about Europe? Is this is fertile ground for those who want to make the case for Europe?

I can see why some of the ultra-Brexiters are relishing this prospect. My conclusion is that there may well be a parliamentary majority against a no-deal Brexit, but it will not be nearly robust enough to go all the way. In other words. the only thing that will stop a no-deal Brexit is a deal.

[UndercoverElephant]

Parliament can stop a no-deal Brexit through the following procedure: it passes a vote of no-confidence in the government. It could then persuade Jeremy Corbyn and the rest of the Labour Party to unite on this procedure or, alternatively, it could use the provisions of the Fixed-Term Parliaments Act to install a technical cross-party administration with the sole task to conduct the referendum.

This requires people like Soubry/Grieve/Clarke to bring down their own government and install Corbyn in Downing Street in order to prevent a no deal brexit. This is highly unlikely. No deal is much more likely.

[UndercoverElephant]

Lots of rumours flying around that Brady has got the 48 letters.