In 2016, almost 52% of the citizens of the United Kingdom voted in favour of the country leaving the European Union, a decision that’s come to be known as BREXIT. It’s been almost 3 years since then; as 29th March, the official BREXIT date comes closer, the House of Commons – the elected, and more powerful part of the British Parliament – is starkly divided on what should be the UK’s relationship with the EU post-midnight on the 29/30th March, 2019.
Need background on BREXIT? Read our introductory article here.
After a month’s delay, Prime Minister Theresa May finally put her BREXIT deal to vote on 15 January 2019. She suffered a colossal defeat – losing by 230 votes – the largest defeat of a government proposal in British Parliamentary history. In damage control, the PM invited Jeremy Corbyn, the Leader of Opposition and the Labour Party, to discuss the way forward. Instead, he decided to raise a no-confidence motion against her – only to lose by a margin of 19 votes, proving that while the government was divided, its mandate was intact.
On the evening of 12th March, MPs in the House of Commons were asked to participate in a second meaningful vote on Prime Minister May’s BREXIT deal. They maintained the same contentions as they had during the first meaningful vote – the ambiguity of the backstop in Northern Ireland, that could cause the region to become permanently trapped under a completely different set of customs and regulatory regimes from the rest of the United Kingdom. The Prime Minister was defeated yet again, this time by a majority of 149 (391 votes to 242). All this despite the fact that, merely hours before the vote, the PM secured a legally binding guarantee that the EU would not misuse the backstop to trap the UK within the EU. However, the Attorney General’s opinion, despite his best attempts to support the PM, clarified that the new guarantee would be difficult to enforce in a legal proceeding – it’s not that easy to prove “bad faith” in an arbitration. Since then, Theresa May has held a rare distinction. As Prime Minister, she has to her credit 2 out of the 4 biggest defeats that any Government has suffered in modern parliamentary history.
Once the PM’s deal was defeated, BREXIT became fair game in the British Parliament. On the 14th of March, the House of Commons went on a spree of votes. First, it held its first formal vote on whether to have a Second Referendum – the result, 85-334, against. Interestingly, the Labour Party – which had in a conference last month agreed in principle to a second referendum – whipped (although not very efficiently) its MPs to abstain. The official reason was that the stage for a second referendum hadn’t yet been reached. Four Labour MPs still voted voted against the referendum, announcing their resignation soon afterwards, while another MP stepped down before the vote. There is some public support for a second referendum however, until now the government has been categorical in its opposition. A second vote would seriously undermine confidence in the democratic process, while having the potential to exacerbate divisions – especially if the people still gave the same verdict. BREXIT can now only be accomplished through a change in the government’s negotiation tactics within the Parliament, and the EU.
Soon after the second referendum was put off, an amendment that would take No-Deal completely off the table was also rejected, potentially because it was too strenuous in its rejection of No-Deal. Then a motion that the PM was practically forced into moving, suggesting an extension to the Art. 50 deadline – which implicitly is a rejection of No-Deal – was put to vote. While a number of Cabinet Ministers voted against it, the motion carried with 413-202 in favor – a majority of 211. This meant that the PM would now go back to the EU and seek an extension to Art. 50. Reports suggest that the UK will seek a short extension of around three months – until the June 30, 2019. However, all delays have to be approved by the 27 other European Union Member States. The challenge is that elections to a new EU Parliament are to take place over April-May, and the new Parliament will begin its term in early June. Now, the EU is unwilling to have UK send members to the EU Parliament, only for them to leave in less than a month. Furthermore, all this still does not guarantee that the UK would not leave on March 29, 2019, without a deal. This is because No-Deal is the default option at the end of the 2 year period that began when Article 50 was triggered in 2017. It is also a date provided under a legislation passed to that effect by the UK. For the extension to have legal force, once the EU approves an extension, the exact same period must also be legislated into law – overriding the previous law – by the British Parliament. If the UK Parliament disagrees even on the period of the extension, and the controversy drags on until March 28, the UK would still crash out at midnight – despite an EU extension!
However, before all of this could be settled, a sort of Constitutional Crisis took PM May and the British Government by storm. On Friday, the government narrowly – with a majority of 2 – avoided an amendment to Parliamentary procedure that could have taken away all powers of setting the Parliament’s agenda from it. This would have meant that the PM could potentially lose control over the entire BREXIT process, and almost all other legislative process, with the Parliament taking all sorts of indicative votes to decide what it wants the government to pursue. Control over the Parliamentary agenda is how governments in Parliamentary democracies can implement their manifesto promises. So, this would have been a major defeat. However, the fact that the UK came so close to abolishing a principle that all countries which inherited democracy from it – including the US, where the Speaker and the Majority Leaders control the agenda – demonstrates the manner in which BREXIT is defining the country’s politics.
The vote had the potential to defeat the Prime Minister in another critical way. The European Research Group (ERG), a cabal of pro-BREXIT MPs, has created havoc in the Conservative Party and largely supports a No-Deal BREXIT. PM May wanted to scare this right-wing group with the twin threats of losing BREXIT forever – to a Second Referendum – and putting Jeremy Corbyn as Prime Minister – in a snap election. Losing control over the Parliamentary Agenda would have meant that the House could force the PM to call for a vote at a time of her choosing, close enough to a deadline to scare those who dislike No-Deal, but keep the threat of another extension to browbeat the ERG as well – and get support for her deal.
Nevertheless, what the rare assertion of authority of the Parliament couldn’t achieve, was achieved on Monday – by the Speaker. Speaker of the House of Commons, John Bercow, threw a spanner in the entire BREXIT process on Monday (March 18, 2019) when he announced that the government could not bring back PM May’s deal to a vote unless substantial changes were made to it. He cited a 400 year standing convention of the House of Commons that prevented a failed motion to be moved again, in the same session, unless it was altered substantially. He further laid down a test, effectively ruling that any deal that was identical, or substantively similar, to the one rejected last Tuesday would not be allowed to even see a vote in this session of Parliament.
Therefore, PM May is now left with four options. One, find a clever legal argument – perhaps one that deals with ‘changed circumstances’, to subvert the Speaker’s ruling. Two, get a majority to overrule the Speaker on the floor of the House – this is very unlikely. Three, convince the EU to grant another substantial concession that can meet the Speaker’s test. Four, seek a substantially long extension on Article 50 – approximately 9-10 months – that allow for either a better deal, or atleast for the Parliament’s current session to end, lifting the condition preventing the deal from getting a third vote. Even if she requests an extension for any length of time however, the EU could simply reject her request forcing a No-Deal BREXIT. Now, the EU does not really want a No-Deal BREXIT as it would effect Ireland (an EU Member), as much as it would impact the UK (Read here). However, it has also said that no further concessions can be made, and that it does not see a point in holding-up BREXIT when there is nothing further to be done from their end. Therefore, unless the EU grants an extension, the only way for the UK to prevent a No-Deal BREXIT on March 29, 2019 is to unilaterally revoke Article 50. It could then trigger it again at a later stage, restarting the 2 year process afresh. Needless to say, the EU will not be amused with this. It is also possible that the Court of Justice of the European Union, which had, through interpretation, given the UK a right to unilaterally revoke Art. 50, could hold this as an abuse of such a power – with unknown consequences.
Our Report on Boris Johnson and senior member of ERG resigning from Cabinet (July 2018).
There is a fifth option, however, it is straight out of a political fiction novel. The PM could somehow convince the Queen to prematurely prorogue Parliament – against the wishes of the latter, obviously – and reconvene it again. This would initiate a new session, and allow the deal to be voted again. However, the last time a monarch meddled in the affairs of the Parliament in this way, was in 1642. The result? Britain entered a 7 year long civil war which ended with the trial and decapitation of the Monarch responsible – King Charles I. It is also for this reason that a Monarch has never stepped inside the House of Commons chamber – since 1642.
The most likely thing therefore, particularly after John Bercow’s intervention, is that a long extension will be sought from the EU. However, a long extension opens the possibility of another General Election – which is what the Labour Party is seeking – transferring the reigns to Jeremy Corbyn. Assessments on the quality of his BREXIT ideas aside, it can be said that his approach is entirely different from that of PM May, meaning that his involvement could trigger another prolonged negotiation. Needless to reiterate that the ERG – which despises Jeremy Corbyn – would never allow the government to fall. At the same time, without a General Election there is no sensible case for extension, other than the fact that it is now needed to vote again on that deal. The majority of MPs and the Labour Party is proposing alternate customs partnership proposals and are resisting a hard BREXIT at all costs.
So here are Britain’s – and PM May’s – options, once again:
1) Do nothing and allow a No-Deal BREXIT on March 29, 2019, with all the disastrous economic and social consequences it entails.
2) Destroy one of the most long-standing conventions of British Democracy by over-ruling the Speaker of the House of Commons in a vote – only to pass a deal that the House of Commons rejected, twice.
3) Find the most clever lawyer in all of Britain to argue your way out of the condition imposed by the Speaker.
4) Break a 400 year old convention of democracy and have The Crown prorogue the Parliament – only to pass a deal that the House of Commons rejected, twice.
5) Convince EU to grant a long extension, have a general election, and risk further delaying BREXIT under a new Prime Minister.
6) Convince the EU to grant a long extension and use it to conduct a second referendum while running the risk that people might vote for BREXIT again and that no one would still be clear on what that actually means.
7) If the EU does not grant an extension, unilaterally revoke Art.50, only to trigger it again and start another 2 year process.
Put simply, Britain is in a mess.
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About the Authors
Simran Sharma is pursuing her Masters in International Studies and Diplomacy at SOAS, University of London and has a Bachelors in Political Science from Kirori Mal College, University of Delhi. During the course of her undergraduate degree she volunteered with multiple NGO’s and also worked for the Government of Delhi as a Policy Intern. In London, she got an opportunity to be a Political Communications Intern at Afghanistan and Central Asian Association. Simran was also part of a week long study tour at the United Nations office in Geneva where she was privy to the complex workings of the organisation and also got an opportunity to chair the United Nations Economic Commission for Europe. She has a strong inclination towards International Security and her area of research focuses on Surveillance and Intelligence tactics used by the United States of America both domestically and internationally.
Prashant Khurana is a student of Law at the Faculty of Law, Delhi University. He holds a Bachelor’s degree in History from Hansraj College. He is an accomplished debater, and an active participant and organiser of Model United Nations Conferences and was recently offered the position of Chairperson at the University of Kent, United Kingdom for their MUN conference. He has appeared as a guest panelist on Headlines Today News Channel and has also interviewed personalities such as Mr. Mani Shankar Aiyar, Dr. Sambit Patra, the Ambassador of Canada to India, among others.