Brexit – after the meaningful vote

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On 15 January 2019, the long awaited “meaningful vote” on the proposed Withdrawal Agreement managing the UK’s departure from the EU and the Political Declaration on the future relationship was held in the House of Commons.

As was widely predicted ahead of the vote, the House of Commons did not approve the Withdrawal Agreement and Political Declaration.  The UK Government lost the vote by 432 votes to 202.  This blog outlines some of the implications for Brexit of the House of Commons’ decision.

Can the current Withdrawal Agreement and Political Declaration be saved?

The scale of the defeat in the House of Commons makes it unlikely that the Withdrawal Agreement and Political Declaration can be salvaged in its current form.  Conservative MPs in particular objected to there being no mechanism to allow the UK to unilaterally withdraw from the Northern Irish backstop.

Other MPs objected to the lack of clarity about the future relationship between the EU and the UK.  The Labour Party suggested that the lack of a permanent Customs Union with the EU meant they couldn’t support the Withdrawal Agreement.

The reservations of MPs about the UK’s future relationship with the EU could be addressed in the Political Declaration, and it is possible the EU might be willing to include a more detailed indication of the future relationship.  However, even with a more detailed Political Declaration, the Withdrawal Agreement would still need to be agreed and it seems unlikely that the EU will agree to reopen negotiations on this.  In addition, even if the Withdrawal Agreement was to be reopened, it’s difficult to see how the Northern Irish backstop could either be removed or amended to allow one side to withdraw from it unilaterally.

If not the current Withdrawal Agreement and Political Declaration, then what?

In the aftermath of the House of Commons vote, it was clear that Members of Parliament are still not agreed about the kind of Brexit the House of Commons wants.  This has two effects:

First, the UK’s internal conversations often appear to some extent ignore that the Brexit negotiations are two sided.  The EU27 has adopted a position on Brexit which has remained constant throughout the negotiations.  Key elements of this position are:

  • that a Withdrawal Agreement must address the three key issues of citizens’ rights, the financial settlement and the Northern Ireland and Ireland border
  • that in negotiating the future relationship, the EU’s four freedoms (goods, services, capital and labour) are indivisible.

Second, the UK’s internal conversations have yet to conclude with a clear picture of what the UK wants from the future relationship.  This has been a common complaint from the EU27 over recent months.

Therefore, if the UK Government or Parliament wishes to re-negotiate the Withdrawal Agreement and/or the Political Declaration, it will need to ensure it has a clear position on what it wants from the negotiations (particularly in terms of the future relationship).  In framing its negotiating position it will also need to be aware of the EU’s red lines.  Any new UK position will also need to be able to gain the support of a majority in the House of Commons if a new Withdrawal Agreement and Political Declaration is brought forward.

To achieve a different deal, either the EU or the UK Government will need to modify its red lines.  The UK Government’s red lines have focussed on ending freedom of movement and the jurisdiction of the Court of Justice of the European Union in the UK.  Without movement from either side, it is difficult to see how a different deal is possible which would be acceptable to the House of Commons.

So, is a no-deal Brexit more likely?

With only 72 days until the UK is due to leave the European Union (on 29 March 2019), last night’s decision in the House of Commons appears to make a no-deal Brexit, where the UK leaves the EU without concluding a Withdrawal Agreement, more likely.

Despite this, MPs have consistently indicated that they believe there is a majority in the House of Commons opposed to a no-deal Brexit.  However, it is also important to remember that if nothing changes, the UK will leave the EU on the 29 March – it is the default position.

To avoid that scenario, either a Withdrawal Agreement and Political Declaration would need to be agreed and ratified, the Article 50 period would need to be extended, or Article 50 would need to be unilaterally revoked.

Extending Article 50 would require a request from the UK Government and the unanimous agreement of the EU27.  Whilst there have been suggestions that that the EU would be willing to extend the Article 50 period, the upcoming European Parliament elections present some obstacles.  In addition, the EU27 may only be in favour of an extension if it is likely to allow for a suitable solution to be reached such as either a Withdrawal Agreement being finalised or the UK choosing to hold a second referendum.

An extension to the Article 50 process would also require a change to “exit day” in the European Union (Withdrawal) Act.

Will the UK leave the EU on 29 March?

If the UK is to leave the EU with a concluded Withdrawal Agreement it now appears unlikely this could be achieved by 29 March.  This is because any changes to the Withdrawal Agreement and Political Declaration will need to be agreed with the EU27 and then consented to by the House of Commons.  The Withdrawal Agreement will also require implementing legislation in the form of an Act of the UK Parliament which might also require the legislative consent of the devolved legislatures.

Therefore, unless the UK leaves the EU in a no-deal scenario, it is beginning to look like Brexit day may need to be delayed.

Iain McIver, SPICe Research