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Grayling's Brexit Bulletin - 14 December 2018

14th December 2018


 

The BREXIT Bulletin: Where we are and what will happen*

 

If one week is meant to be a long time in politics, as former UK Prime Minister Harold Wilson is supposed to have said, then two weeks must be a positive chasm.

Rather than recap on everything that has taken place in the last few weeks, it may be helpful to clarify where things stand:

  1. There is not yet a date for a vote on the deal in Westminster - that it will be after Christmas, and before 21 January, is the most we have to go on
  2. The European Parliament will not vote on the deal until Westminster has done so
  3. There is no majority for the deal in Westminster at the current time
  4. There is also no majority for a no-deal, either in Westminster or across the EU
  5. The EU will not renegotiate the deal 
  6. The UK will leave the EU by automatic operation of law on 29 March 2019
  7. The transition period (which will preserve much of the status quo) will only happen if the deal is passed by both the UK and the EU

As Consultants, we are regularly asked to map out scenarios for Brexit. This we do, grinning through the pain, because in truth there are infinite scenarios. 

For example, we may not have predicted a no-confidence vote in Theresa May before Christmas. We would however state that the chances of a no-deal are increasing, but how to square this with point (4) above? 

The chances of a second referendum may have risen too - certainly if you believe Remain campaigners - but what options would be on the table? When will this happen? And (more pertinently) what to do if the result is 52%-48% in favour of Remain?

We now know the UK could, if it chooses, unilaterally revoke Article 50. But this would surely be a move of desperation by whichever government is in power, and also goes against what has been said repeatedly by many UK politicians - to "deliver" Brexit for the British people and respect the referendum result.


The scenario this writer believes most likely is as follows:

  1. Westminster votes on the deal in early January.
  2. It loses, but not by as much as it might have done this month.
  3. Westminster votes on it again in February, and eventually it passes, MPs holding their noses, because they know, deep down, that it's this deal or no deal. 
  4. The European Parliament votes through the deal expeditiously, given the lack of time
  5. The UK government, still led by Theresa May, refuses to revoke Article 50
  6. There is neither the time nor the political will for a second referendum
  7. The UK leaves the EU on 29 March 2019 with the deal it has so painfully negotiated
  8. The Transition Period kicks in on 30 March 2019 and will last at least until 31 December 2020.


A week is a long time in politics. It may all look very different in 7 days.

*According to us. This is not binding!



If you have any suggestions about the Brexit Bulletin or want to find out more about a specific aspect of Brexit, please do let us know. Please visit the Grayling Brussels website, follow us on Twitter @TheEULobby, and don't forget to check out our Brexit Papers


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This week's content:
The view from the UK

The view from the European Court of Justice

 

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

Our Grayling Brexit Unit brings together the very best consultants from across the Grayling network and includes those who have direct experience of working alongside the leading political figures charged with negotiating Brexit in London and Brussels.

The Grayling Brexit Unit is here to support, guide and inform the success of your business and identify how the political dynamics will change as a result of Brexit in both London and Brussels. We are your Brexit experts.

Please contact Robert Francis Tel +32 2739 47 34 (robert.francis@grayling.com) in our Brussels team or Jonathan Curtis (Jonathan.Curtis@grayling.com) in London for more information, and check out our brochure.

 


 

 

 #Brexit Papers 


Brexit Negotiating Documents
The 'Great Repeal Bill'
Brits working in the EU institutions
Article 50

Sir Julian King - The Last UK Commissioner
David Davis – UK Brexit Secretary.
Sir Keir Starmer – Shadow Brexit Secretary.
Sir Tim Barrow – UK Permanent Representative.
Michel Barnier – EU Chief Negotiator.
Sabine Weyand – Barnier’s Deputy.
Guy Verhofstadt – EP Brexit Lead
No-deal – Concrete impact


Grayling Team

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