BREXIT UPDATE 16:  THE EUROPEAN COUNCIL’S COMPLEX DECISION

At the end of Brexit Update 15, I imagined a possible scenario in which Donald Tusk, the President of the European Council of Ministers, saved the UK, literally “at the eleventh hour”, from the catastrophe of exiting the EU without a deal, by summoning, on the night of March 28, an emergency meeting of the Council that would decide on a long extension of the leaving date.

Reality, however, tends to be much less dramatic and more complicated than imagination – and Brexit, though it’s often easy to forget this, is indeed reality.  In the actual event, the Council, when it met last night (March 21) decided on a method of avoiding No Deal on March 29 that is far less spectacular and far more complex than my envisioned denouement –and the complications are in fact much more in keeping with the nature of Brexit.

It seems that the EU leaders were so alarmed by the Maybot’s 90-minute presentation to them (before she left the room so that they could debate and make their decision) that they decided that, rather than wait and see if an emergency summit is needed on March 28, they should take measures to prevent No Deal there and then. When asked if she had a Plan B if she lost the vote on her deal on her third attempt, the Maybot is said to have been unable to provide any reply.  We have of course seen that the Maybot doesn’t do Plan Bs – they were never programmed into her.  The Guardian quotes today various EU sources:

“’It was 90 minutes of nothing.  She didn’t even give clarity that she is organising a vote.  Asked three times what she would do if she lost the vote, she couldn’t say…Evasive even by her standards’; ‘She very much dodged these questions’; ‘She was not convincing. It was not clear if she had a plan B; it was not clear if she had a plan at all.’”[1]

The European Council’s decision, reached after hours of debate last night, comes in two parts:

1) If the Maybot’s deal passes next week, there will be a technical extension till May 22, in order to sort out the necessary legislation.  The European Parliament elections will be held on May 23, though the new European Parliament will not actually sit till early July, which is why the Maybot had asked for an extension till June 30; but it is clear that the EU does not want Brexit to interfere in any way with the European election process (unless there is a long extension during which the UK takes part in the European elections).

2) If the deal is rejected by Parliament next week for a third time, then the UK will be given only two weeks, till April 12, to present the EU with a decision on the way forward.  In a press conference, Donald Tusk said that, in this two-week period: “all options remain on the table…the UK government will still have a chance of a deal, no deal, a long extension or revoking Article 50 [ie cancelling Brexit altogether]”.

If the UK decides on a long extension, this will have to be agreed before April 12, which is the cut-off date for preparing for European Parliament elections.  So if a long extension is decided, this means the UK will be agreeing to take part in the European elections.  If by April 12 the UK does not decide on a long extension, it will no longer be an option.[2]

The two week period of grace is in fact the same length as that offered to Parliament by the Cabinet Office minister who deputises for the Maybot, David Lidington, in his speech on March 14 proposing the government motion.  As was mentioned in Brexit Update 13, Lidington said that, if the deal is rejected for a third time: “the government….would facilitate a process, in the two weeks after the March European Council, to allow the House to seek a majority on the way forward” – ie in the two weeks after March 21, the House of Commons will be allowed “‘indicative votes” to reach a consensus on the way ahead.

So  it is likely that, if the deal is (as again seems very likely) rejected again, the House of Commons will spend the two weeks until April 12 debating the way forward in order to reach a consensus.  However, Tusk’s comment that, in the two-week period, the deal will also remain on the table implies that the Maybot could have a go at presenting the deal to Parliament for a fourth time before the April 12 deadline.

Sky News is now reporting that a senior government minister has told it that, if the deal is rejected next week, the House of Commons could be presented with seven different options: 1)  revoking Article 50; 2) a second referendum; 3) the deal again (for a fourth time); 4) the deal plus a customs union; 5) the deal plus a customs union and single market access; 6) a standard free-trade agreement ;7) leaving without a deal. [3]

In options 4 and 5, it looks as though a desperate Maybot is trying to amalgamate her deal with Corbyn’s alternative Brexit plan in order to get her deal passed in some form, however diluted. The Labour leaders, however, regard the deal as so intrinsically flawed that they are unlikely to agree to these options – or even to the idea that these are the only alternatives before Parliament (three of them involve accepting the deal in some way).

Meanwhile, a petition calling on the government to revoke Article 50 has garnered over three million signatures. [4] In December 2018, the European Court of Justice ruled that the British government can unilaterally revoke Article 50.  But the Maybot has said in speeches to Parliament  that she will never do this; predictably she has rejected the petition.  In fact, it is highly unlikely that any Prime Minister, including Corbyn, would overrule the democratic decision for Brexit by simply revoking it without holding a second referendum – which itself seems unlikely to be accepted by Parliament.

What Could Happen Next

MPs are expected to vote on a “statutory instrument” that will change the date of Brexit in British law, so that the UK no longer faces a legal leaving date of March 29.  This is the only more or less certain step ahead.  It is still not known if or when the Maybot will bring her deal back to Parliament next week – she still needs to get round the Speaker’s ruling.

However, in view of the European Council’s decision, it does seem likely that the third Meaningful Vote on the deal will be held next week.  If it fails, which is highly likely – especially after the Maybot’s extremely ill-advised address to the nation that put the whole blame for the current mess on MPs – Corbyn could table another vote of no confidence in the government.  Such is the frustration in the Maybot that is felt by her own party that this vote of no confidence could stand a chance of succeeding this time; the government would fall, triggering a General Election.

What happens if the deal fails but a vote of no confidence also does not succeed?   As I have suggested before, the Maybot herself, in a final desperate gamble, could herself call a snap election or maybe a referendum on her deal. Her ill-advised address to the nation (even though she semi-apologised for it in a speech last night[5]) seems to indicate that her thoughts are moving in that direction; she clearly thinks that the public is likely to support her deal.

If there is no immediate General Election, the House of Commons is likely to take control of the Brexit process, spending two weeks debating in order to reach a consensus on the way forward.  As Keir Starmer, the Shadow Brexit Secretary, said in the Emergency Debate on Wednesday (March 20), the House needs to decide on a purpose for any extension, and the purpose will determine the length.  Any purpose decided upon will require an extension longer than April 12.  So it is likely, in these circumstances, that Parliament will decide on a long extension that will mean that the UK will take part in the European Parliament elections.  Such a decision would probably lead to the Maybot’s resignation, as she will have failed in her mission to deliver Brexit on time.  This would trigger a Conservative leadership contest, which would probably lead to a General Election.  So – difficult though it is to make any predictions in a climate of such uncertainty – most scenarios seem to lead to a General Election.

[1] https://www.theguardian.com/politics/2019/mar/22/it-was-not-clear-if-she-had-a-plan-at-all-how-mays-night-at-the-summit-unfolded

[2] https://www.bbc.co.uk/news/uk-politics-47663031

[3] https://news.sky.com/story/plan-for-mps-to-get-votes-on-seven-brexit-options-if-theresa-mays-deal-defeated-again-11672593

[4] https://www.theguardian.com/politics/2019/mar/22/petition-to-revoke-article-50-hits-3-million-signatures

[5] https://www.itv.com/news/2019-03-22/theresa-may-acknowledges-frustrations-of-mps-after-brexit-speech-backlash/