Theresa May Postponed Today’s Brexit Vote. Here’s What Could Come Next

Theresa May Postponed Today’s Brexit Vote. Here’s What Could Come Next

By defeating the government in the procedural vote last week, the House of Commons put itself, rather than the prime minister and her cabinet, in charge of finding a path forward.
Christopher Jacobs
By

On Monday, British Prime Minister Theresa May announced to a packed House of Commons that her government would postpone a vote on her Brexit agreement with the European Union—a vote that May, by her own admission, would have almost certainly lost. Press reports in Britain had suggested at least 100 of May’s fellow Conservative MPs were set to abandon the party whip and vote against the deal. As it stands now, May has only about 220 votes for the agreement—and roughly half of those have to vote for it, to keep their ministerial jobs in her government.

That May would lose the vote has seemed the worst-kept secret in British politics—certainly since rumors of the deal with the European Union (EU) began circulating, if not before that. But what happens next? All manner of parlor games and “Choose Your Own Adventure” diagrams have sprung up to explain the various scenarios, because no one really knows.

The government has repeatedly claimed it has no “Plan B” if the current agreement fails. This position had some obvious tactical explanations. Publicly admitting other options than May’s unpopular deal would have hastened its demise. But the government also hadn’t announced a “Plan B” because it doesn’t have many ready options available. If it did, ministers would have used them a long time ago.

Under existing law, the government must provide a “meaningful vote” on the withdrawal agreement by next January 21. However, having postponed Tuesday’s scheduled proceedings, May gave no indication when that vote might occur, instead saying she would go to Brussels for further consultations with EU leaders on the agreement.

One key fact to bear in mind, as this BBC clip makes plain: Because Parliament has already passed legislation triggering the Article 50 process to leave the European Union, and repealing Britain’s European Communities Act, the default option remains that Britain leaves the EU on March 29, 2019 in a so-called “no deal” scenario.

That means no trade agreement with the EU, a reimposition of border and customs checks—including at the border between Northern Ireland and the Republic of Ireland—and the kind of uncertainty that could spook businesses in Britain (e.g., a possible six months of traffic delays in Kent, as border delays would back trucks up for miles at the Dover entrance to the Channel Tunnel) and financial markets around the world.

While all major parties in Britain want to avoid a “no deal” scenario—particularly a chaotic “no deal” Brexit—doing so will require intervening action. Unless Parliament can muster a majority in the House of Commons and the House of Lords for some alternative course of action, Britain will end up in a “no deal” Brexit. Herewith the major scenarios—and the major obstacles that go with them.

A Second Debate in Parliament

Because May did not officially bring the agreement to a Commons vote, she avoided procedural obstacles that could have made a re-vote difficult. Specifically, custom dictates that the House of Commons, once having spoken on a matter, should not decide the same issue twice in the same session of Parliament.

However, May suffered widespread criticism for canceling the vote unilaterally, and for not giving any indication when the actual vote might proceed. Frustrated members on all sides of the House protested the last-minute cancellation—the term “farce” came up no fewer than nine separate times during the debates. One member even grabbed the ceremonial mace in the House of Commons to show his anger at the government’s action—a grave offence with few precedents in British history:

But will May’s surprising moves to delay the vote in the hope of obtaining additional concessions actually work? In another round of negotiations with Brussels, the EU might give May some political clarifications regarding the agreement, if necessary to assuage a few recalcitrant MPs in a second vote. President of the European Council Donald Tusk alluded to this possibility in a Monday tweet that referenced “how to facilitate UK ratification” of the withdrawal agreement.

May hopes the EU can give more assurances regarding the “backstop”—the mechanism to regulate the border between Northern Ireland and the Republic of Ireland if the UK and EU cannot reach agreement on a trade deal. The “backstop” ranks at the top of concerns for MPs, who worry that it will leave the UK subject to EU laws, and unable to withdraw from the “backstop” unilaterally.

But can political clarifications on the “backstop” alone generate sufficient support to allow Parliament to ratify the agreement? On the substance of the withdrawal agreement itself, the EU seems unlikely to grant additional concessions to satisfy May’s domestic politics—not least because it has held the upper hand in negotiating with Britain from the outset. And at least some parliamentary rebels on Monday indicated they wanted more than soothing noises from Brussels, and wanted to alter the withdrawal agreement itself.

A New Prime Minister

A poor outcome on Tuesday could have been interpreted the vote as one of confidence in her leadership, prompting May to resign of her own accord. Alternatively, 48 Conservative backbench MPs can at any time trigger a leadership election, by writing letters to Graham Brady, chairman of the 1922 Committee of Conservative MPs.

May could contest a leadership election—an up-or-down referendum by Conservative MPs on her leadership of the party—but if she loses that, she could not stand in the race to elect a new Conservative leader and thus prime minister. However, one Labour MP noted in a debate last month that May faced an “impossible task” in negotiating a withdrawal agreement with the EU, and it seems unclear at best whether a new face could do any better.

Either May, or a replacement as prime minister, could theoretically negotiate an agreement keeping Britain in a customs union with the EU after it relinquishes its membership—the so-called “Norway-plus” model. But to remain in a customs union, the EU would insist on Britain maintaining the free movement of EU nationals and remaining subject to many EU laws and regulations.

Given that immigration concerns helped drive the successful Brexit referendum in the first place, most Conservative MPs would never countenance an agreement that explicitly maintains the free movement of people within Britain, let alone preserves the jurisdiction of EU laws, and the European Court of Justice, on British soil. While some have discussed whether a coalition of other parties could take over, and shepherd such an agreement through Parliament, the current math—Conservatives hold 315 seats, only 11 short of a majority—makes that extremely difficult.

A New Election

With the current Parliament at an impasse, another election could provide more clarity—or muddy the waters further. Most importantly, under the Fixed Term Parliaments Act, passed by the Conservative coalition government in 2011, May, or any Conservative replacement, cannot automatically call a new general election. (Labour, led by Jeremy Corbyn, agreed to the “snap” election May called last year.) Unless Parliament remains in a prolonged impasse—with a government defeated on a vote of confidence, and no government formed to take its place for a fortnight—dissolving Parliament requires a two-thirds vote, giving other parties a veto in the matter.

A new election presents other logistical problems. First, as a practical matter, a general election likely would not occur until early February. Second, Britain has not conducted a general election campaign during the dreary northern European winter in more than four decades, since Ted Heath called a plebiscite in the midst of his battle with the unions (a vote he lost) in February 1974.

More to the point, a general election may not give a clear outcome, as last year’s vote made plain. May “went to the country” last spring hoping to win an increased majority, and instead ended up losing her outright majority, forcing her to rely on the votes of Northern Ireland’s MPs to remain in office. Putting the details of Brexit on pause for two months for another general election, and then hoping the results would provide a clear path forward—with only six weeks to go until the official Brexit date post-election—seems rather optimistic on multiple fronts.

A New Referendum

Some have called for another referendum on Britain’s membership in the EU. Legal improprieties by the Vote Leave campaign two years ago have given campaigners ammunition for a “people’s vote,” along with what they view as the contrast between the rosy Brexit scenarios presented during the last referendum campaign and the reality of negotiations with the EU. On the other hand, even though May campaigned to Remain during the 2016 referendum, she and others have cautioned against turning the issue into a “neverendum,” with public ballots at regular intervals increasing uncertainty.

May, or any Conservative successor, seems unlikely to agree to this outcome—or, to put it more bluntly, to be allowed to agree to it. Having fought for and won a referendum on the Brexit issue, backbench Conservative MPs who want to limit the EU’s influence in Britain likely will not agree to a re-run.

A new referendum seems unlikely absent a new prime minister from outside the Conservative party. Because a referendum would take even longer to organize than a general election would—one group of constitutional experts estimates it would require nearly six months, to allow for the drafting of the ballot question and formation of “official” Leave and Remain campaigns—it seems unlikely to happen prior to March 29.

Delayed Brexit, Or No Brexit

On Monday, the European Court of Justice made this option a more realistic scenario, albeit still an unlikely one. In response to a suit from Scottish politicians opposed to Brexit, the court ruled that, just as Britain invoked the Article 50 process to leave the EU unilaterally, it can withdraw from that process unilaterally, essentially saying that the country changed its mind, and now desires to remain in the Union. Alternatively, May could request an extension to the negotiating process, but all 27 other members of the European Union would have to agree.

On this front, the EU faces its own dilemma. It wants to keep Britain in the Union should the country have a change of heart, but it does not want to turn the Article 50 process into a mechanism for other EU members to use the threat of departure to bargain for their own better deals within the Union.

It seems unlikely that May would agree to any postponement of the Brexit date, just as she seems unlikely to concede a second referendum. Then again, the decision may not be hers to make.

Unfortunately, however, it remains less clear who will decide, because few options seem able to gather a majority of 326 votes in the House of Commons. This week’s planned vote will make the problem crystal clear. But as yet, the solution to that problem remains as clear as mud.

Mr. Jacobs is founder and CEO of Juniper Research Group, a policy consulting firm based in Washington. He is on Twitter: @chrisjacobsHC.

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