The route to any other outcome is fraught with difficulties
You might think that with 94% of the time between the referendum and the scheduled Brexit Day now gone, we’d have some idea as to when and how Britain will be leaving the EU. Arguments about conceptual arrangements would have been better had in 2016 rather than in the final weeks. Instead, even the question as to whether the country will leave remains in doubt. No such luck.
The measure of that uncertainty is evident in the current status of the Withdrawal Agreement. Despite Theresa May having secured a provisional deal and despite parliament having overwhelmingly rejected it, it remains in some political quantum state, neither dead nor alive but capable of either.
In fact, there are four possible outcomes to Brexit and with markets surrounding them, it’s worth looking at their respective chances. The best way to do so is through process. How can we get there?
The most radical outcome would be to not Brexit at all. The CJEU very helpfully gave departing states the right to revoke Article 50 notification unilaterally. Not that that means the ball is entirely in Britain’s court, as we’ll come on to.
In theory, Britain could simply revoke and that would be that. In practice, it’s not so simple. Most obviously, Theresa May leads a political party which is overwhelmingly backed by Leavers and has Leavers as an overwhelming share of its members. A majority of its MPs might have backed Remain in 2016 but, like the PM herself, are now committed to Leaving. A U-turn is not only against May’s many-times declared intent (not that that’s stopped her U-turning before) but also would be such anathema to enough Tory MPs, with further extra-parliamentary pressure, that she couldn’t deliver it without being deposed.
Could someone else? The only realistic alternative is Corbyn, who is himself committed to Brexit (it’s notable that Labour’s Brexit ‘policy’ until recently was to secure a general election, which is not an objective not a policy – what would they have done had they won it?). Further, it’ll be almost impossible to force a change of government, either within the Commons or via an election before March 29. For someone else to take the reins requires an A50 extension. We’ll come back to that.
Ah yes: the undead. Not everyone hates the 600+ pages of text, though lots do. Even so, for all that it’s worse in the eyes of many MPs than their preferred options, it’s rarely the worst option of all (though for the DUP, it probably is). For MPs opposed to No Deal and unable to secure any other outcome, it’s the only means of doing so and has the huge benefit of being acceptable to the EU. (This assumes that the European Parliament will sign it off, though the signs are that they will).
Unfortunately, it’s not quite so simple as that. It’s not just a single vote to approve the deal that the government needs but a whole Act of Parliament to implement it (this of course goes for any deal). Putting together an ad hoc ragbag coalition across the House on a one-off basis to get the Withdrawal Agreement through will be hard enough; to repeat the trick time and again through the many stages of legislating (in both Houses), so much harder. And again – this is up against the clock: unless both ratification and legislation can be complete before the end of next month, an Article 50 extension will be needed.
A different Deal
Here be unicorns. This so-called option or outcome has bedevilled the process ever since the PM returned from Brussels with her underwhelming document. Critics all know what they don’t like and if only the government and/or EU would agree to remain in the Customs Union, or remove the backstop, or provide a withdrawal mechanism, or mirror EU social and employment legislation – and so on – the MPs would vote for it.
Two problems with that. The first is that the EU has been firm that it won’t reopen the text, and the second is that these various groups chasing different aspirations are contradictory, so even if the government and EU could shift position and renegotiate a text it took 18 months to negotiate within the space of weeks, there’s still no guarantee that there’d be a majority for it in the House.
In fact, the EU might not be so unyielding if the UK were to ask for softer exit terms and/or offer some other concession but it’s clear that’s not what May is asking for. Besides, the N Ireland backstop – at the root of the difficulty in ratifying the existing deal – goes beyond customs alignment so a permanent customs union is not of itself enough to obviate the need (as the EU and Dublin sees it) for the backstop.
This is the easiest route to plan and the hardest to assess. It’s what happens if nothing else is agreed, by the time the clock runs out. That might or might not be March 29 (we could have an A50 extension to the end of June and still end up with No Deal), but it is still the default, absent anything positive being agreed.
What about second referendums, changes of government, general elections and so on? The simple answer is that these are not outcomes, they’re events along the way (or, in some cases, possibly afterwards). They might influence a particular outcome but they are not, of themselves, destinations.
If Brexit was easy, we wouldn’t be where we are. No Deal is intolerable and the rest may well be unachievable. But against the immovable object of indecision runs the remorseless and irresistible force of time.
I really don’t see the EU moving its red lines, even at the cost of a No Deal outcome (note that even if nothing has been agreed by 29 March, it might still be possible to resurrect the original deal as a scramble back to some sort of framework.
Likewise, I don’t see any value in a general election for the government. There may be an election, if the DUP feel sufficiently betrayed but we’re not there now. There is merit in the value of a public vote but an election is messy, doesn’t guarantee a clear winner, mixes up all sort of issues and puts the government at stake.
What is, I think, still much more possible than is being given credit for, due mainly to the fact that neither front bench wants it, is a second referendum. A referendum holds two main advantages. Firstly, it can be made binding and all the provisions can be put in place in advance, contingent on the outcome. That reverses the normal process and so gives everyone an incentive to cross the T’s and dot the I’s in advance. And secondly, it gives enough people a stake in the process to create a natural majority – though the price would have to be a three-way vote, with both Remain and No Deal on the paper, alongside the original deal (assuming no new one has taken its place).
Not that that would be simple. We’d be talking about new, complex, legislation plus a lengthy campaign, which probably couldn’t be completed before the autumn. Would the EU grant such a long extension? One that goes into the next European Parliament’s term? There has to be some doubt and if it didn’t, then we’d be straight into No Deal.
There is a path to May’s Deal and to Remain, though both are fairly tortuous but any other deal looks very unlikely. As it stands, No Deal looks by some way the most likely outcome, mainly by default rather than design. After all, the entire process has been marked much more by cock-up than conspiracy. Why should we expect that to change now?