Countdown to Brexit: 72 days – ‘No Confidence’ vote consumes another precious day of Brexit preparations

Yesterday, Parliament voted not to accept the Brexit ‘deal’ on offer by 432 votes to 202.

After almost two years locked in negotiation, the EU and UK finalised the texts of a ‘Withdrawal Agreement’ and ‘Political Declaration’ on 14 November 2018.  The two linked documents respectively set out: the terms for working together on pretty much the same basis as today for a limited transition period – between 30 March 2019 and 31 December 2020 – and; a framework for negotiating the long-term future EU-UK relationship during the transition period.

A no-deal Brexit by default looks ever more likely as another day of precious Parliamentary time for Brexit preparation is lost to debating and voting on the ‘no confidence’ motion that followed the Government’s Brexit deal defeat.

Without this deal being approved, time to find alternatives to the default ‘no-deal’ Brexit on 29 March is running out.  It is clear that it is not a case of ‘tuning’ the deal to reverse the defeat.

Consistently since November, the EU and every one of the 27 remaining states has said that there will be no renegotiating either the terms or the texts.  The European Commission has re-stated assurances on the intention that the backstop arrangement to prevent a ‘hard’ Irish border would be temporary if it had to be introduced.


Withdrawal Agreement and Political Declaration

The Brexit negotiators – led by Michel Barnier with his “Article 50 Task Force” for the EU, and the UK Government representatives - and multiple Brexit Ministers - reached agreement on a deal on 14 November 2018.  This was endorsed by the 27 remaining EU Member States on 25 November.  

Article 50 of the Treaty on European Union sets out the exit process - including how the EU institutions ratify such an agreement.  

UK ratification involves a meaningful vote on the negotiated text before a Bill is introduced in Parliament – which, when enacted, paves the way for Brexit. 

The 'meaningful vote'

The ‘meaningful vote’ on the Withdrawal Agreement was held on 15 January – having been postponed from 11 December 2018 - and was heavily defeated 202 votes in favour to 432 votes against.  One of the main obstacles for the UK Parliament is the Protocol on Ireland/Northern Ireland which provides for a ‘backstop’.  The ‘backstop’ is a series of measures intended to ensure goods can move across the border between Ireland and Northern Ireland without checks and the associated physical infrastructure that are the norm at international borders outside the EU.

Objections to the Withdrawal Agreement

Other objections from MPs to the negotiated Withdrawal Agreement include the payment to the EU of £39 billion; the loss of UK control over EU legislation that it would be required to implement during the 21-month - or possibly longer - transition period; and the inability for new UK trade agreements with third countries to enter into force until after the transition period if they cover trade in goods and not only services.

EU 'clarifications' and 'assurances'

The Prime Minister had sought ‘clarifications’ and ‘assurances’ from the EU that the backstop would not or could not become permanent.  The European Council stated in Conclusions in December 2018 that it is willing to give further assurances that the backstop is not intended to be permanent and that the aim is to agree a future relations agreement as soon as possible which will enter into force after the end of the transition/ implementation period.  This is a re-statement from the Protocol itself and elsewhere in the Withdrawal Agreement.  The Attorney General also confirmed that European Council Conclusions had legal force in international law.

What more could the EU offer the UK?

The European Commission has said it will not re-open negotiations or change the negotiated text. The text of the Withdrawal Agreement and Political Declaration have already been ratified by the European Council, comprising the heads of each of the 27 remaining member states – and it has been sent to the European Parliament for its consideration.

In theory, the EU can offer the UK whatever it wishes.  It is unlikely to change its mind about the current text: it will not agree to a time-limited backstop - because a backstop that expires before it is replaced by a permanent structure is not actually a ‘backstop’.  The EU might offer a short extension of the Article 50 negotiating period - but this would only be in the circumstances that a further assurance or clarification would tip the balance of opinion in Parliament in the coming days allowing a re-run of the vote on the deal to be revered.  Frankly, it seems unlikely given yesterday’s majority of 432 to 202.

A no-deal Brexit by default looks ever more likely as another day of Brexit preparations are lost to debating and voting on the ‘no confidence’ motion that followed the Brexit deal defeat.

John ShuttleworthComment