Countdown to Brexit: 71 days – Government delays vote on an amended ‘deal’ – increasing risk of a ‘no-deal Brexit’

The House of Commons voted against accepting the Government’ negotiated Brexit ‘deal’ on Tuesday.  It was voted down 432 votes to 202.

Constitutionally, this was a “decision not to approve the resolution”.  A vote otherwise would have approved the ‘deal’ for the purposes of the EU (Withdrawal) Act 2018.  The Government now has 21 days to: “make a statement setting out how Her Majesty’s Government proposes to proceed in relation to negotiations for the United Kingdom’s withdrawal from the EU under Article 50(2) of the Treaty on European Union.”

An ‘order’ passed on 9 January states that the Government must “table a motion” of how they present an alternative to Parliament within three sitting days of any decision not to approve.  Immediately after losing the vote, the Prime Minister, accordingly, said that the Government would both make a statement and table a motion on or before Monday 21 January.  This triggers a debate on the next steps that has to take place no later 7 sitting days thereafter – that is, on or before 30 January.

This is perilously close to the jointly agreed Treaty deadline for the UK to give notice of acceptance of the Withdrawal Agreement - or to leave the European Union on 29 March under the default arrangements of a ‘no-deal’.

What happens next?

The “no confidence” procedure under the Fixed-term Parliaments Act 2011 is legally separate from the Brexit process and - as expected - the Government won this vote yesterday, 16 January 2019 by 325 votes to 306.  However, this may in practice affect the process of seeking a solution that can command a Parliamentary majority – given the overwhelming drive to avoid a no-deal at almost any cost.

The outcome of the Withdrawal Agreement and no confidence votes will influence, both in political and practical terms, what the Government sets out in its statement on Monday 21 January - and what the response of opposition and backbench MPs will be to any contingency plan offered by it.

MPs have presented Bills before the House of Commons in connection with: EU withdrawal; and provision for an EU referendum.  Since these are not Government Bills, there are limited opportunities for MPs to debate and vote on them.

Whilst the Labour leader, Jeremy Corbyn is holding to his red-line that unless a no-deal Brexit is ruled out before he meets her is an "impossible condition" – others including those on key Brexit and Parliamentary Committees, including Yvette Cooper, Hilary Benn and  Stephen Kinnock have had "constructive talks" with cabinet ministers including David Lidington and Michael Gove, and the prime minister's chief of staff Gavin Barwell.

It seems no options are outside discussion.  Kinnock says he raised the need for the Prime Minister to take no-deal off the table, as well as discussing his preferred option of a Norway-style agreement, which would see a close relationship with the European Union.  This was echoed by Benn and Cooper – both adamant that PM has to take no-deal off the table before there can be any compromise - they commented that Lidington did not mention any new ideas or ways forward.

The Greens, the Scottish Nationals, Plaid Cymru and the Liberals have all taken part in the discussions over the last 24 hours.

Across Europe, there is a consistent party line that the deal is not available to re-negotiation.  Speaking in the Irish parliament, Simon Coveney said: "It would be impossible in a no-deal scenario to maintain the current seamless arrangements between the EU and UK across a full range of sectors, which is currently facilitated by our common EU membership."   Coveney said the EU would continue to seek to be as helpful as possible but that the Withdrawal Agreement was not open for renegotiation.  "The backstop is an essential part of the Withdrawal Agreement," he added.

Extending Article 50

There has been discussion on avoiding a no-deal Brexit by extending Article 50 notice period.  The government would need to propose that and MPs would have to approve it.  But, crucially - unlike in the case of revoking Article 50 which the European Court of Justice has ruled is open to the UK unilaterally until 23:00 MT on 29 March 2019 – an ‘extension’ would also need the unanimous agreement of all other 27 remining EU countries.

One of the constraints for the rest of the EU is that European elections will take place at the end of May and the new European Parliament - without UK MEPs if Brexit has taken place - is due to meet for the first time in July.

The only other circumstance in which a brief extension to Article 50 would probably be approved by the EU is if there had been a vote in favour of Theresa May's deal but a little more time was needed to dot the "i"s and cross the "t"s.  This now seems unlikely as the heavy defeat of the deal shows it would require fundamental change – and the EU, having got approvals from both the European Council and European Parliament is constitutionally unable to re-visit the Withdrawal Agreement and its accompanying Political Declaration.

European Council President Donald Tusk has hinted that the UK should stay in the EU, after the prime minister's Brexit deal was rejected in Parliament.  "If a deal is impossible, and no-one wants no deal, then who will finally have the courage to say what the only positive solution is?" he tweeted.

European Commission President Jean-Claude Juncker warned that time was running out for the UK to strike a deal.  "I urge the United Kingdom to clarify its intentions as soon as possible. Time is almost up," he said shortly after the result was announced.

Jean-Claude Juncker said that: "The risk of a disorderly withdrawal of the United Kingdom has increased with this evening's vote."

The EU's chief Brexit negotiator, Michel Barnier, told the European Parliament in Strasbourg he "profoundly" regretted the vote.  "An orderly withdrawal will remain our absolute priority in the coming weeks."  He added that there would be a favourable response if Mrs May were prepared to rethink her position on issues like the single market and customs union.

Meanwhile all European countries have responded to the call to arms and are ramping up preparations for a no-deal Brexit in 71 days’ time.

We posted a set of date driven deadlines – and the risk of tipping over into a no-deal Brexit increased as Prime Minister May pushed the next debate on a deal back to the end of January.  A loss there will put the UK perilously close to a default no-deal Brexit.

John ShuttleworthComment