Brexit: Why Article 50 revocation is now on the table for Britain

The Brexit news is coming hot and heavy now. The latest out of the UK is that House of Commons Speaker John Bercow has allowed an attempt to force Prime Minister Theresa May’s hand on the Brexit deal.

The Commons Speaker will allow MPs to vote this afternoon on an amendment saying that Mrs May must return to the Commons for another vote within three days if her Brexit deal is voted down on Tuesday. The amendment was tabled by Dominic Grieve, the former Conservative attorney-general who has repeatedly thwarted the government throughout the Brexit process.

The vote passed 308-297 in favor of forcing this three-day plan B deadline.

That is Parliament trying to regain some control over the Brexit process. But Theresa May’s government is still controlling events here. But, before we get into the immediate wrangling, I want to give you my view on where I believe this is headed and why.

The political constraints

Britain remains deeply divided over the Brexit issue. If a second referendum on the issue were held today, it’s not entirely clear what the outcome would be, though I reckon some form of ‘remain’ would prevail.

More importantly from a political perspective, the Tory Party remains deeply divided on the issue as well. And so to the degree that British Prime Minister Theresa May chooses to prioritize ‘party over country’ as we head toward the wire, there is no solution that will help her do so.

Now, a no-deal Brexit is the hardest of hard Brexits. And only a minority of Theresa May’s party supports it. So, if May were to allow Britain to go to the wall and crash out of the European Union without a deal, only that minority – the hardest of the hard Brexiteers – would rejoice. And she would fracture her party.

Moreover, to the degree that the government chooses this no-deal Brexit option, it is one that an overwhelming majority of the electorate would not support. Polling data show this. So, if May cannot get her negotiated agreement with the EU through Parliament, choosing the hard Brexit no-deal option would be choosing an option that a decided minority of the British electorate wants. And that would almost certainly be political Armageddon for the Tories.

As I wrote yesterday, the Conservatives actually hold a lead in polling data. So that, were an election to take place today, they could form another government.

Westminster voting intention:

CON: 40% (-1)
LAB: 34% (-5)
LDEM: 10% (+3)
GRN: 4% (-)
UKIP: 4% (+1)

via @YouGov, 21 Dec – 04 Jan
Chgs. w/ 17 Dec

— Britain Elects (@britainelects) January 5, 2019

But, allowing a no-deal Brexit to go through would change that calculus immediately – and likely quite drastically given the widespread opposition in the electorate to and fear of a no-deal Brexit.

Theresa May’s decision

Theresa May is often politically tone-deaf and she has not shown great management skills in dealing with the Brexit issue. So, all of the above may seem logical. But, at the end of the day, given she cannot be removed from office due to December’s failed leadership challenge in the Conservative Party, she can basically do whatever she wants unless Parliament stops her.

Now, my understanding here is that Parliament isn’t in the driver’s seat on this. For example, if you read the accounts of yesterday’s vote, that subtext is clear. The headline was that “They defeated the government by 303 votes to 296 – a majority of seven – making May the first prime minister in 41 years to lose a vote on a government finance bill. ” But, the subtext was that “The rebels, who included the former defence secretary Sir Michael Fallon and the former Cabinet Office minister Sir Oliver Letwin, warned that they would continue to sabotage all no-deal Brexit legislation until Theresa May ruled out the option.”

MPs sabotaging no-deal Brexit preparations is the voice they have right now. They are not in control of events. They are trying to put pressure on the government to allow them to have a greater measure of control – hence the 3-day plan B deadline scheduled for this afternoon.

Where I think this is going

May is running down the clock. And in doing so, she’s creating the most dire of dire political situations for her country. But, even so, Parliament will not approve her negotiated agreement with the EU for the UK’s from the EU. And with opposition to a no-deal Brexit rising ever more vociferously in Parliament, it’s clear that she will not be given a free path toward that eventuality.

My view has long been that a delay or revocation of Article 50 is the likeliest outcome. For me, it was clear in December just on the Irish backstop issue alone. But, now, the rebellion within May’s own party makes it more clear that opposition to both her deal and no deal is equally fierce.

From the EU perspective, what’s important is that, even if Britain were to leave the EU, Britain has become an object lesson in the futility of trying to fight the EU, just as Greece was before it. The EU will have achieved its objective of making EU departure look a nightmare. And no sane European politician will want to take its electorate through what Britain has gone through.

This might make the EU more accommodating in allowing May to simply delay Brexit. But, if it doesn’t, I believe May will be forced to revoke Article 50 altogether.

The legalities

The question now is how that gets done. For example, last month there was a good article in the UK Constitutional Law Association asking “What Would Be the UK’s Constitutional Requirements to Revoke Article 50?“. Here’s how they preface their answer. I have added bold for emphasis:

Today the Court of Justice of the European Union delivered its judgment in Wightman. This followed the opinion of Advocate General Campos Sánchez-Bordona, concluding that the UK may unilaterally revoke its notification of its intention to leave the EU. In a similar manner to the AG, the CJEU placed conditions on this unilateral revocation. A formal process would be needed to notify the European Council of the UK’s intention to revoke article 50. Such notice of revocation would have to be unequivocal and unconditional (para 74), and, importantly, ‘in accordance with the constitutional requirements of the Member State’, in this case, the UK, and following a ‘democratic process’ (para 66). It would also have to take place before the end of the Article 50 negotiation period, or any agreed extension, and before a Withdrawal Agreement between the exiting state and the EU had been ‘concluded’ – i.e. entered into force (para 73). In addition, the AG’s opinion was that any revocation would have to be in ‘good faith’ and in line with the requirement of ‘sincere cooperation’ between the Member State and the EU and. Further, although not required, it would be reasonable for the Member State to provide its reasons for revoking the Article 50 notification.

This raises an important question for UK constitutional lawyers:  what would be the constitutional requirements for the UK to lawfully notify the Council of its intention to revoke its Article 50 notification in order to remain in the EU? In particular, is AG Campos Sánchez-Bordona correct in his suggestion that ‘if the national constitutional requirements include, for example, prior parliamentary authorisation for the notification of the intention to withdraw from the European Union (as is the case in the United Kingdom, according to the Miller judgment), it is logical, in my view, that the revocation of that notification also requires parliamentary approval’ (para 145)?

This post will argue that primary legislation would be legally and constitutionally required in order to empower the Prime Minister to revoke Article 50. It will contend that the clear legal arguments in favour of this conclusion are reinforced by concerns of both political reality and arguments of constitutional legitimacy.

So, their view is that Parliament must do the dirty work. The government cannot just go and revoke Article 50 itself. But that’s not the only question because:

Many argue that democratic legitimacy would require not just an Act of Parliament but also a second referendum to be held before a decision to revoke Article 50 could properly be made.

This is very problematic given the timetable. I’m not going to speculate since I am not a British constitutional lawyer. But you can see this is touch and go.

My view on Brexit mirrors comments from the Guardian

Let me conclude with an editorial from the Guardian. They call it, “The Guardian view on Brexit: the government has failed – it’s time to go back to the people”

Take a look at these paragraphs. They dovetail with my own view:

Next week the House of Commons will take what is probably the most consequential vote of our era. Unless the government again gets cold feet, key aspects of this country’s economic model, social cohesion and international future will be shaped in the so-called “meaningful vote” over Theresa May’s Brexit deal. It will define what Britain is more than any other political event in modern times. It poses questions and choices that cannot be shirked.

… Britain is a European nation by virtue of its geography and history. It shares enduring economic and cultural ties and values with the rest of Europe. Above all, Britain has a direct interest, born from the suffering of our peoples in decades of war, in the peace and harmony of Europe from which all can prosper. In the era of Donald Trump and Xi Jinping, Britain’s engagement in Europe is freshly urgent.

However, the Guardian has never been an uncritical supporter of the EU. It has warned against the delusion of a United States of Europe. It has upheld the centrality of democratic nation states within the EU and stressed the enduring reality of national borders. It was enthusiastic about the epochal re-engagement between eastern and western Europe after the collapse of communism, but measured about the practicalities. It was critical about the reckless way that European monetary union was launched in the 1990s and, after much thought, preferred that Britain should keep its distance from the eurozone and its rules. These concerns have been vindicated by events.

…Leave’s victory cannot simply be dismissed as nostalgia for empire or dislike of foreigners, though these were factors. Many leave voters felt abandoned and unheard in an increasingly unequal Britain marked by vast wealth in parts of south-east England and austerity and post-industrial abandonment elsewhere. Income levels in London have risen by a third since the financial crash – but have dropped by 14% in Yorkshire and Humberside.

… the Brexit process fell vastly short. Ministers did not say what they wanted before invoking article 50. The government took a hard approach, not a soft one. Mrs May misread the public mood in the election of 2017. Her ministers proved incompetent negotiators. They were dismissive of parliament instead of seeking to build a majority there. Nothing substantial was done to address the social causes of the vote. The prime minister prioritised holding the Conservative party together over uniting the country – and failed in both. Her government was contemptuous of genuine concerns about everything from the economy to civil rights. It took little notice of Scotland and Wales. It failed to see that the DUP’s sectarian interests in Ireland are a world away from the interests of Northern Ireland or modern Britain. Instead of producing a deal which could command a majority in the Commons, it produced one that doesn’t even command a majority in the Tory party.

[…]

There is no outcome on the table this month that will not be divisive for years to come. That is true of a no-deal Brexit, which would be disastrous for the vast majority, especially younger people. It is true for Mrs May’s deal, as it sets the terms of the UK’s departure but not the nature of the future relationship with the EU, leaving the door open to more venomous debate. And it is true of a second referendum, because leave voters will fear that this is merely a device to rob them of their voice and restore a failed form of politics which has done little or nothing for them.

…If Mrs May’s deal is rejected, as it should be, Britain should pause the article 50 process and put Brexit on hold. Parliament should explicitly reject no-deal. MPs should then open up the debate to the country: first, by establishing a citizens’ assembly to examine the options and issues that face the nation; and second, by giving parliament the right, if it so chooses, to put these alternatives in a referendum this year or next. Such a vote should not be a repeat of 2016, but a choice between new options for Britain’s future relationship with Europe which are spelled out and which parliament can implement. This would require a set of clear and plausible alternatives, and the time and political support for the assembly to deliberate. Given the schisms that we are seeking to heal, the medicine is not less democracy but more.

I will leave it there.