The view from the UK
A tumultuous week in Westminster
Theresa May has endured a tumultuous week, beginning with her decision to defer the Meaningful Vote on her Brexit deal as she faced what could have been a three figure defeat. Her postponement caused parliamentary outcry, and before she could return to Brussels to renegotiate the deal, the Conservative Party triggered a leadership contest – with 48 letters sent to Sir Graham Brady, Chair of the Conservative Group of backbench MPs, declaring no confidence in the Prime Minister.
Wednesday evening’s vote saw May win by 200 votes to 117, which both sides have since heralded as a victory. Meanwhile, the opposition parties are debating whether to table in Parliament a vote of no confidence in the Prime Minister, with the Scottish National Party putting pressure on Labour to lead this. And finally, Theresa May went to Brussels to try to renegotiate her deal but left with nothing.
The Grayling view
What does all this mean? First, her decision to postpone the Meaningful Vote highlighted that deadlock remains in Parliament. There is at present, no majority for no deal, no majority for May’s deal, no majority for a Canada style agreement, and probably no majority for a Norway-style agreement. The only thing there is a parliamentary majority for is remain – but any government who brought that forward as an option in a vote would be brave.
Second, there is a strong argument to be made that the leadership challenge has left May in her strongest position constitutionally since she called a General Election in 2017. This is because under international law only her Government has the power to stop the UK’s exit from the EU because it is a matter of international treaty law (although a parliamentary vote compelling her to prevent a no-deal Brexit would have significant political force). Similarly, if May was to call either a General Election or a second referendum it would be significantly more difficult for Conservative MPs to halt her chosen course of action.
Third, despite winning a vote of no confidence, May will still face a significant challenge to unite her party behind either her Brexit deal or her leadership. This has been starkly highlighted by the respective spin that each side is putting on the result. Loyalists are pointing out the May received a higher share of the vote than when she became Prime Minister. Rebels are pointing out that if 100% of MPs who are on the government payroll voted for May (something that is highly unlikely), then over 50% of backbench MPs voted against the Prime Minister. Similarly, with May announcing she will not be Conservative leader by the time of the next General Election, this week has also marked the formal start of the next Conservative leadership contest. This will only undermine her leadership further, and calls for an exact date of departure are likely to increase – especially as she is only safe from a further leadership challenge for 12 months.
Finally, with the Conservatives in turmoil, conventional wisdom would dictate that the opposition would act. However, with polls still showing the main parties tied and the Labour parliamentary party split as to how to proceed on Brexit, they are simply not acting.
Where does this leave us? Waiting for the New Year and the political momentum to shift decisively. Where it will shift is more difficult to discern.
The view from the European Court of Justice The view from the UK
ECJ rules that Art. 50 is unilaterally revocable
On 10 December the Court of Justice of the EU (ECJ) delivered its ruling, confirming that Art. 50 is unilaterally revocable. However, it can only be revoked prior to the entry into force of a Withdrawal Agreement or the expiration of the two year negotiating window. In addition, the ruling notes that revocation must be conducted in accordance with the constitutional requirements of the Member State in question.
Whilst the European Commission and European Council had been firm in their view that revocation would only be possible via a unanimous vote among the rest of the EU Member States, the ruling states that this would impinge on the leaving country’s sovereign rights.
It is also interesting to note that, if a country does choose to revoke, it reverts back to the exact situation as before - in the UK's case, with its opt-outs fully intact.
The Grayling View
The ruling adds another element into the Brexit context, but it would take a lot of political courage for any Conservative politician to make such a move given their constant references to carrying out "the will of the people", meaning that it must be unlikely for the UK to take advantage of this option before 29 March 2019.
The judgement has slightly bolstered the campaign for a so-called "People’s Vote" to reverse the result of the 2016 Referendum and further emphasised the ease with which Brexit could just be stopped - yet this remains rather implausible at the current time.
That said, come early March, if no-deal remains a real prospect, the pressure to pull the revocation lever may become considerable.
Dates for your diary
13-14 December 2018 - EU Summit
1 January 2019 - Romanian Presidency of the Council
29 March 2019 - UK expected to leave EU
31 December 2020 - Expected end of transition
Grayling Brexit Unit
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