Brexit – what happens next?

Some weeks ago we reported on an analysis of the statutory and regulatory changes needed to be passed by Parliament in order to separate the UK from EU legal framework.  The math was clear – there was not enough time left to complete the task according to the traditions and provisions of British law-making.  A shortcut that is only supposed to used for non-contentious items or routine changes was about to be adopted.  I readily admit that I wasn’t even aware of the role and history of Statutory Instruments – but this Parliamentary by-pass, introduced by Henry VIII, looks set to be used potentially hundreds of times in the coming 4 months - to the dismay of MPs. Lords and constitutional experts.  All because time is now too short to do things in the established manner (see Insight Aug 23, 2018).

And now, as the race is on for the Prime Minister to secure a deal with Brussels chiefs, and MPs are denied access to the full text of the legal advice behind her Irish border backstop plan in order to rush things along, the Labour Party have introduced a “humble address” – a tactic used in the past to force publication of crucial documents (and another Parliamentary device I admit to never having heard of) and it is set to pass in the Commons later today.

Unlike normal motions, a “humble address” is binding and the government will be forced to publish – although it could argue the advice does not exist yet, with the negotiations still ongoing.

What are we to make of this move.  Is it the opposition arguing for the sake of it?  It seems not as Cabinet ministers were the first to demand to see the full advice - fearing they might be bounced into giving their consent to the Brexit deal without knowing its full implications.

For the pro-Brexit Tories – the fear is that the UK risks being shut indefinitely into the EU customs union – unable to sign its own trade deals – unless it can end the backstop unilaterally.

For Labour - it would be untenable to: “keep MPs in the dark” on the legal advice if they are to have a “meaningful vote” on whether to endorse the prime minister’s departure terms.

The 60-strong European Research Group (ERG) of Brexit-backing Tory MPs, as well as the Democratic Unionist Party and the Liberal Democrats, have called for parliament to be handed the full advice.

The advice comes from the UK Attorney General, Geoffrey Cox, who has advised the cabinet on the legal reasoning behind the backstop.  He is, however, unlikely to finalise his advice unless and until a deal has been reached with Brussels.  

Have we reached a deal?  This evening the Prime Minister is meeting ministers in Downing Street for one-to-one talks as they are given sight of the draft agreement.  Meanwhile, the EU said it would "take stock" tomorrow (Wednesday) - and the Irish government said negotiations were "ongoing and have not concluded".

The draft Agreement that has taken months of negotiators’ blood, sweat and tears has been reached - at least at a technical level.  A paper will be drafted overnight to present to the Cabinet tomorrow for political approval from Theresa May's team.

Some in the Cabinet retain deep reservations – within the last 24 hours there have been warnings that what's on the table is just not acceptable - and will never get through Parliament.

The process of finalising any agreement includes ratification from the 27 remaining EU nations – and the postponed deadline to start this process (it was originally October 2018) is 25 November at an EU leaders’ summit.  In the other, parallel, process in the UK, MPs could vote on the deal before Christmas.  The latest date allowed within the UK’s constitutional process, in order for the Withdrawal Agreement to be approved by Parliament in the UK for Brexit as scheduled on 29 March 2019 is 21 January 2019.

EU chief Brexit negotiator, Michel Barnier, continues to insist that the remaining 27 EU member states are given: “enough time to review the proposals.”  The draft Agreement reportedly runs to 500 pages – and Brussels will only agree to put the wheels in motion for a summit if agreement can be reached on the issue of the Irish border.

Ireland’s ambassador to the U.K. Adrian O’Neill is reported to have joined the debate today stating that a hard Brexit or no-deal scenario would “no doubt” increase the chances of a border poll being held on whether Northern Ireland should re-join the Republic.   O’Neill: “If we ended up in a hard Brexit and a hard border that would have implications down the line for Northern Ireland and for the degree to which the views and opinions would change.”  The ambassador explained his conclusions as a no-deal Brexit would give people in Northern Ireland two reasons to consider joining the Republic. It would appeal to those in the nationalist community who have long called for Irish reunification, but also to those who want Northern Ireland to remain in the EU.

Argentina’s Foreign Minister, Jorge Faurie, will see a no-deal Brexit as a boost to bringing the Falklands back under its control. Once the UK leaves the European Union, all EU treaties will cease to apply and member states will no longer be obliged to support the UK’s claim over the territory.  Faurie: “Our planning for Las Malvinas is to have a negotiation that will enable stronger relations between the people on the islands and the people on the mainland."

On the other hand, Spain’s Prime Minister, Pedro Sanchez, said at the conclusion of an EU leaders’ summit in Brussels, that the issue between the Britain and Spain “is resolved” and “will no longer be a problem” for the UK’s plans to leave the EU.  Gibraltar will leave the EU along with the UK on 29 March next year.

Britain and Spain are in separate, bilateral, talks regarding Gibraltar - focusing on matters such as workers’ movements across the border, environmental issues and tax affairs.  The EU’s guidelines on negotiations for Britain’s future relationship with the bloc had granted Spain veto rights over the issue of Gibraltar.

Gibraltar and Falklands are just 2 of the 14 British overseas territories: Anguilla; Bermuda; British Antarctic Territory; British Indian Ocean Territory; British Virgin Islands; Cayman Islands; Falkland Islands; Gibraltar; Montserrat; Pitcairn Islands; St Helena, Ascension and Tristan da Cunha; South Georgia and South Sandwich Islands; and Turks and Caicos Islands.

So as the tussle in London and Brussels plays out, spare a thought for fellow British citizens around the globe.  In a report entitled "Anguilla & Brexit: Britain's forgotten EU border", the Anguillan government called for a regional customs union with St Martin and a common travel area.  Anguilla is also mostly ineligible for British development aid, and is therefore highly dependent on money coming from the EU for more than a third of its budget.  "I know it's difficult when we have a population the size of a British village," says Blondel Cluff, "but we need to make sure we don't get forgotten in the mix."

It all means that even half way round the world Brexit is raising concerns about the freedom of movement of goods, of services, and of course of people.  "The fact that people in overseas territories are going to lose an important element of their citizenship, without having been asked about it, may well give rise to legal challenges in the future," according to Susie Alegre, a lawyer specialising in the rights of citizens in the British Overseas Territories.

We have been advocating that government, business, commerce and citizens invoke their contingency plans for a no-deal Brexit.  We advise the territories to do the same.

Business chiefs and investors say a "no-deal" Brexit would weaken the West, panic financial markets and block the arteries of trade.  Brexit supporters say such fears are exaggerated and Britain would thrive in the long term.

US investment bank J.P. Morgan issued a statement on Friday (9 November) saying that it expects Parliament to reject the deal at first and then, after a period of volatility, to give its approval on a second or even third go in early January.  The opposition Labour Party has indicated it will vote against the deal and that if the government loses then it will demand a national election.

Brinkmanship means maintaining a fine balance and it’s a game that politicians can play – that’s why they are in politics.  For the rest of us with businesses to run and lives to live, the risks are too high to wait and see.  We can only repeat our mantra of “plan for the worst and hope for the best” – it just seems the prudent thing to do given there are only 16 weeks until a potential cliff-edge, no-deal Brexit.

John ShuttleworthComment