18 December 2018

The Prime Minister needs to recognise her weakness in Parliament, but also her strength in having the only Brexit deal on the table. Parliamentary agility might help her make progress, argues Jill Rutter.

Of the five possible scenarios for Brexit we laid out in the summer, the Prime Minister is currently trapped in Scenario 3: Deal / No / Renegotiate – where she has a deal with the EU, it is rejected by MPs, and she tries to renegotiate with the EU. But after last week’s European Council, it is far from clear that renegotiation will pave a path back to Scenario 1: Deal / Yes.

Despite a new option emerging, MPs trying to form consensus through a series of indicative votes, the Prime Minister’s preferred tactic is to tough it out and “go down to the wire”. Meanwhile another referendum lurks in the wings as a possible way forward that neither frontbench wants at the moment, but may end up as a last resort.

Rather than spend the remaining three months until the UK leaves the EU bouncing round an ever-narrowing doom loop, with MPs resorting to guerrilla tactics, the Prime Minister should be trying to break the stalemate.

The phony war we saw in December gives way to productive realism in January

The Prime Minister has now set a date for the debate – week commencing 7 January, with the meaningful vote the next week. But time is short and the Government needs to get over the meaningful vote hurdle to unlock possible ways forward.

The process could look something like the following:

Step 1: Have the meaningful votebut if there is nothing new on the table, treat as a resumed debate. The Prime Minister could even use another of our suggested tactics and make it a free vote. Assuming the motion is defeated, make clear the immediate next step will be…

Step 2: Allow MPs to have indicative votes on another way forward. This would be to see whether there is any majority for a way forward. At the moment, it looks like no option commands a majority.

If that is right, the Prime Minister’s next gambit could be to try a cross-the-floor tactic designed to unite all those MPs who say they “want to respect the referendum” minus those who cannot accept her backstop.

The risk to her is that this could trigger a confidence motion where the DUP would back the Opposition, so she would need to be confident that her way forward could command cross-party support.

Step 3: Put the Withdrawal Agreement back to MPs – but decouple it from the political declaration. Assuming the indicative votes indicate no majority for a referendum and no majority for a no deal exit, the Prime Minister can take it that there are the votes for an orderly Brexit. 

Her deal is the only one on offer that can guarantee an orderly Brexit. She could say to MPs that they need to pass that part of her deal (and the Withdrawal Agreement Bill) to ensure a transition and an opening of negotiations on the future relationship.

She could then make a virtue of the vagueness of the political declaration – the 27 pages on non-legally binding text on the future framework. It encompasses a range of relationships and where the EU has repeatedly made clear that others are possible if UK red lines change.

The Prime Minister could offer Parliament the ability to shape the future UK-EU relationship

At its weakest, the Prime Minister could give Parliament the final say on both the mandate and the outcome of the negotiations. If there were an emerging option from the indicative votes, she could promise to make that the UK’s negotiating objective. 

Or she could commit herself to allow either parliamentarians – through a parliamentary commission or through a citizens’ assembly (or both) – to consider and recommend their preferred future relationship.

The final, most extreme commitment, would be to promise an early general election as soon as the UK was safely into transition.

Either way, this all needs to happen fast, suggesting a degree of agility that the Prime Minister has not shown before. It also assumes she genuinely believes her deal is in the national interest and she should not willingly head for a disorderly Brexit. But to give her deal a chance, she needs to be more modest about what she has achieved and more open on how to move forward. 

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Comments

The EU law is that both parts must be voted on as one package. So step 3 not possible.

The meaningful vote is UK process not EU process (required by domestic law). The UK legislation is to put the withdrawal treaty into law. The political declaration is a starting point for negotiations which the EU said could not start until the UK is a third country. It will need to get a mandate approved. The March guidelines made clear that the EU's position was based on UK starting positions and could evolve. EU officials have said much easier to change the political declaration than the Withdrawal Agreement. So I think perfectly doable...

The possibility of decoupling the WA and the PD is interesting. The PM is clearly needy, very much want's to get her "deal" approved. How much one wonders would she be prepared to concede? Could an opposition (LP, some coalition) offer approval at the price of participating somehow in the phase 2 negs?Or would she offer that? Likely difficulty (apart from anything else) is that the fight over phase 2 neg mandate would be a rerun of the ref: Canada type FTA (= out) vs SM,CU (= in) the rubicon remains does the UK want to cross it or not?

My recollection of Article 50 is that it says the Withdrawal Agreement should be agreed in the context of guidelines for the future relationship (or similar phrasing). So I doubt that the EU could agree to jetison the PA entirely. But since the PA is an entirely vacuous document anyway, capable of meaning all things to all peopole, one could argue that the PM has already delivered a deal that de-couples the two agreements pretty much totally in practice anyway. But I'm unclear why pushing that line more explictly in the new year would do any better for the prospects of the Commons passing the WA than the demonstrable fact that the two agreements are already severed has done in the last month. Old wine in new bottles ain't going to solve this one I'm afraid Jill.

You say the Prime Minister’s deal is “the only one on offer that can guarantee an orderly Brexit”.
That is not quite true. The EU always made clear that the EEA option is open to U.K., and as far as M Barnier is concerned, the EU would keep it open to the end of the process.
This would of course be significantly more advantageous than Mrs May’s WA as it keeps the whole of U.K. in the single market for services as well as goods. It avoids the uncertainty of the PD since frictionless trade could be maintained without the need to spend the next two or three years negotiating an inevitable less advantageous FTA.
Fortunately, it is within the gift of government to decide whether or not to leave EEA since we are a named member of the agreement. The EEA Act of 1993 which ratified U.K. membership remains on the statute book, unamended and unrepealed by the Withdrawal Act.
Unlike the convoluted agreement Mrs May sought to reach, the EEA agreement is tried and tested. It remains after 25 years the preferred alternative to EU membership for two prosperous and proudly independent European countries, and could yet be for a third.
Unlike Mrs. May’s deal, the EEA option has significant cross-party support, and not just from the 75 Labour members who were prepared to defy their inept leader’s whip to support this at an earlier stage. Their votes could yet outweigh those of the ERG Tories who would not support any workable deal because they actually favour a no deal Brexit.

I think that JR analysis and advice is broadly correct. The problem is that May continues to try to placate the hard-Brexiteers (HB's)by time-limiting the backstop, when that is a contradiction in terms and thus futile, and pointless anyway as most of HB's want no deal and won't be placated.
Parliament must either approve the WA, or a feasible alternative to it, which basically leaves EEA-plus, if both no deal and a second referendum is to be avoided.
But it is doubtful whether that EEA-plus could command a parliamentary majority and it could not be progressed by a May-led government due to her fixation on migration and FOM.
If MP's focused on the facts, and confirmed as principles:
• The current WA backstop, whether time-limited or not, is incompatible with the December 2017 overarching NI backstop,as it envisages separate regulatory treatment for NI in relation to goods;
• A comprehensive and deep economic partnership with the EU cannot be achieved in the short-to-medium term through the agreement of a Canada-style FTA;
• The future benefits of any future UK trade deals with the ROW will be miniscule compared to the economic damage inflicted by loss of frictionless trade with the EU;
• Frictionless trade, in turn, depends upon the maintenance of an equivalent CU with no rules of origin checks and continuing UK regulatory alignment with SM rules for goods into the foreseeable future.
This would give the government something realistic to go back to Brussels to get a Supplementary Protocol on the interpretation of the WA backstop to align that agreed in December 2017 (first bullet point) consistent with future negotiating principles (revised PD), as defined in last three points.

As a Scottish remainer and a democratic believer Brexit must be guaranteed as voted for. There are too many political party arguments each party fighting for their own beliefs. This is wrong . Politicians should remember they work for the people and the people's wishes should be adhered to without party policies. This is a very unusual situation it is a national problem not a party one. Forget your own beliefs and do your job for your constituents not being "whipped" by party leaders. I am disgusted by our politicians behaviour and my pride in the British Constitution is waning!!!