27 March 2019

With the Government unable to command a majority for the third “meaningful vote” on the package it has negotiated with the EU, MPs will now vote on a series of potential Brexit options in so-called “indicative votes”. The options could range from a No Deal Brexit at one end of the spectrum to revoking Article 50 on the other, with various shades of negotiated Brexit “deals” in between.

The rationale for indicative votes is to find a way through the current parliamentary stalemate. The process has been instigated by a cross-party group of MPs, some of whom have previously voted for the current deal but are concerned with avoiding a No Deal Brexit. Other MPs in this group favour a different deal, while still others prefer a second referendum in order to cancel Brexit.

Indicative votes do not alter the fundamental choice: No Deal, the Withdrawal Agreement, or No Brexit

Indicative votes are yet another manifestation of an argument about process rather than substance, since they cannot alter the choices facing Parliament.

First, it is not guaranteed that a single option will command a clear majority amongst MPs. In which case we will have come full circle, but with the added complication of the Government’s authority and control further weakened. This added political instability could precipitate a vote of confidence, the Prime Minister’s resignation or a General Election.

Second, it is not clear why indicative votes are necessary or how they will fundamentally change the substantial elements of the negotiated deal on the table. At this late stage of the Article 50 process, the legally-binding Withdrawal Agreement and Northern Irish backstop negotiated between the UK government and the EU are very unlikely to be altered.

If Parliament votes for an option based on renegotiating the legally-binding aspects of the current package, it would put the UK back into direct conflict with EU negotiators, who are unwilling to move again after providing further legal guarantees at Strasbourg. Therefore, aside from a No Deal Brexit, the Withdrawal Agreement and the backstop will underpin all of the alternative, negotiated Brexit “deals” on offer.

The Labour Party leadership has suggested that it is no longer seeking changes to Withdrawal Agreement but to the non-binding Political Declaration on the future UK-EU relationship, which provides a broad outline of the UK’s and EU’s negotiating objectives for the future relationship. The Labour leader’s spokesman has stated that:

We have said that to achieve the kind of compromise and the alternative plan that we’ve been laying out and discussing with MPs from across the house, that would need to be done through amendments to the political declaration – and could be.

However, the reality is that the current Political Declaration would not preclude any conceivable, negotiated future UK-EU relationship, including UK membership of the Single Market and/or a permanent custom union, favoured by many Labour MPs.

Indeed, as EU Chief Negotiator Michel Barnier stated on 23 January 2019, after the Political Declaration was agreed:

If the UK’s red lines were to change in the days or weeks to come, the Union would immediately be prepared to look at other – more ambitious – models for the relationship, each of them based on a balance between rights and obligations. We are therefore prepared to rework the content and the level of ambition of the political declaration if the UK shifts its red lines.

Barnier has also said previously that the EU would consider a change in ‘red lines’ after the end of Article 50.

On the other side of the debate, the legal guarantees provided by the EU at Strasbourg are designed to reassure Conservative Brexiteers that the Withdrawal Agreement can also provide a route to a Canada-style free trade agreement (if “alternative arrangements” can be found to the Northern Irish backstop).

The current package provides a pathway to many possible negotiated Brexit futures. Indicative votes can only reaffirm this fact or seek to shut down potential options, for the future. Unable to force a No Deal Brexit, Brexiteers opposed to the current package will be faced only with options that build on the very elements of the deal (the backstop) they do not like, such as a permanent customs union, or Single Market Membership, or efforts to rule out the Canada-style deal they favour.

Parliament cannot mandate the Executive to magically produce a long-term UK-EU relationship

Many MPs in favour of a “softer” Brexit clearly feel that Parliament has been side-lined by the Government throughout the Brexit process. However, much of the problem stems from Westminster’s failure to internalise the consequences of the structure of the Brexit negotiations. This has been exacerbated by Brussels complaining about the Prime Minister’s ‘red lines’ when changing these would have no effect on the Withdrawal Agreement.

MPs want the Government to guarantee a future UK-EU relationship, which is yet to be negotiated. It is understandable Parliament wants to express its view on the future relationship but one of the reasons why the Political Declaration is rather vague is precisely because Parliament has shown no sign of reaching a consensus. Another is because the EU interpreted Article 50 so as to separate withdrawal and future relationship issues.

If MPs are able to demonstrate a clear majority for a desired option for the future relationship, this would have some political weight with the government of the day. However, Parliament cannot replace the Executive and this or a future government will be responsible for delivering the future UK-EU relationship in the second phase of negotiations with the EU. As the EU has stated consistently since Article 50 was triggered in 2017, substantive negotiations on the detail of the future UK-EU relationship will not commence until the UK has formally left the EU.

Could formally splitting the Withdrawal Agreement from the Political Declaration be an option?

Recent reports have suggested that in talks with Labour leader Jeremy Corbyn, the Prime Minister suggested that the Withdrawal Agreement could be separated from the Political Declaration.

This is certainly possible from the point of view of the EU – as far as Article 50 is concerned, how the UK ratifies the withdrawal deal is a matter for the UK. Moreover, the recent European Council conclusions on the conditions for an Article 50 extension to 22 May only require the Commons to vote for the Withdrawal Agreement – not the Political Declaration.

At present, Section 13 of the EU (Withdrawal) Act states that the Withdrawal Agreement can only be ratified if both it and the framework for the future relationship are approved by the House of Commons. However, this domestic legal position could be changed if the Government and Parliament did wish to separate the Withdrawal Agreement and Political Declaration.

Does any of this matter as long as it breaks the deadlock?

Indicative votes might just provide the political cover many Labour MPs feel they require to vote for the Withdrawal Agreement but any “changes” they secure in the process will be new guidelines at best.

With the Government no longer in charge of the process, the strategic risks facing Brexiteers only increase. While changes to the Political Declaration cannot be legally binding on the outcome of the future relationship negotiations they could have the effect of shutting down potential options. A clear mandate from Parliament to conclude a permanent customs union, and interpreted as such by EU negotiators, would undermine the objective of securing an independent UK trade policy.

Ultimately, if Parliament does not ratify the UK’s withdrawal soon, there is an increased risk of a General Election, lengthy extension to Article 50 and/or revocation of Brexit altogether: the very objectives of Conservative Brexiteers’ political opponents, be they Jeremy Corbyn, “soft” Brexiteers, or Remainers. In these circumstances, the Withdrawal Agreement on offer should look more attractive by the day.

Open Europe sets outs the key features of the various negotiated Brexit outcomes in the table below. The precise provisions of these options would be subject to negotiation, and may evolve over time – our assessment looks at the scope of what could be included under each model.

If you cannot view the PDF reader below, please click here to read the table. 

 

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