Ostensibly, Brexit is drawing to an end game. Boris pledged to achieve this by 31st October, “do or die”. Decisions have to be made but what decisions and by who? This is an attempt to make the issues simple, despite the complications.
The latest Withdrawal Agreement (WA) provides changes to the original, notably the removal of what was known as the “back stop”, sold as an insurance policy to maintain the integrity of the Single Market for the EU but in reality, at least from the British perspective, an apparently irrevocable chain that could not be broken.
Further developments came in the Political Declaration. In essence, the future relationship between the UK and the EU to be based on a free trade agreement (FTA) rather than a customs union. The difference between the two is essentially that the UK has more freedom in dealings with the rest of the world.
So who makes the decisions, according to Article 50 and international law? To make matters simple, the process differs on the type of decision but decision makers are essentially the same. It is noted that the WA and PD are an agreement between two parties, the WA being legally binding.
On the side of the EU, decisions are made by the European Council, the ministers of the governments in the EU27 countries. To agree a deal or treaty, the decision is made by the Council on the basis of a majority under qualified majority voting (QMV) subject to the later approval of the European Parliament and in keeping with paragraph 2 of Article 50.
By contrast, a decision to extend the time scale, as has already been exercised twice requires a unanimous vote by each of the 27 member states.
The other party to the agreements is obviously the UK. Article 50 tells us that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” and is supported by the Vienna Convention. The government, the executive, is responsible for negotiating treaties, in the UK subject to the approval of parliament, the legislature.
In the short to medium term, there are three potential outcomes, characterised as to leave with a deal, to leave without a deal or to revoke Article 50 and to remain. In practice, to leave with a deal sets up the negotiating process over the future relationship, characterised by the PD.
The first decision for the EU is how to respond to the request for a further extension. It will be recalled that the Benn Act provided for an extension to be requested, the letter containing the request unsigned by the Prime Minister and accompanied by a covering letter.
The response from the EU could be an unqualified yes, if ALL national leaders of EU member states agree according to paragraph 3 of Article 50. The same unanimity is required for any conditions that might be attached to any agreement to extend. The Benn Act suggests that the Prime Minister complies, however outrageous those conditions might be.
A lack of consent means that the UK would leave with “no deal” on 31st October unless there are further changes within the UK, specifically revocation of Article 50 and remaining in the EU. It should of course also be noted that the EU27 are not bound to reply immediately.
Ostensibly, the EU27 can not make that decision face to face until the provisional date of 28th October for a further summit. This could be overcome by a form of proxy discussion, through member state ambassadors to the EU.
Politicking for beneficial status on any issue by any individual member state can not be ruled out. In short, an extension can not be guaranteed, perhaps unless the conditions are merely technical. No reply before 28th October puts pressure back on the UK to agree the deal, or otherwise.
The British end of the process started with the first Saturday sitting on the House of Commons since 1982. There have been several delaying measures deployed since the first Brexit date of 29th March 2019.
It has been speculated that further delaying tactics might include amendments leading to a second referendum, People’s Vote or confirmatory vote, depending on political party. Logistically, given the time scale for this to happen, any such prospect is subject to extension by the EU, perhaps for several months. The EU27 may have no desire to subject themselves to such uncertainty for a prolonged period.
Some decisions over the WA have of course been approved, the European Council have agreed the WA and PD as it stands during their summit on 17th and 18th October. The decision is now for the UK parliament to agree or disagree with the current WA, scheduled to take place this week.
Further amendments may be laid. Whether the EU will agree to make any changes is subject to conjecture. Those who seek a further referendum may be thwarted, counter productively making “no deal” the most likely outcome. Beyond those projections, all other issues become matters of conjecture.
If there is no agreement beyond a technical extension, what happens next?
The Remain side of the argument have limited time to revoke Article 50, although it can be done. Those who hide behind a further referendum would be flushed into the open, are they false objections or is their aim really to revoke?
As already stated, the default position if the WA is not approved is currently “no deal”. If approved, what happens next?
The PD then comes into force, then decisions have been moved to the future. The provisional deadline for the end of a transition or implementation period is 31st December 2002, with provision for extension until 31st December 2022, potentially beyond. The next decision date becomes July 2020.
The range of possible outcomes becomes much wider. It may well be dependent of a future general election. Given that the current government is in a technical minority, there are decisions to be made by opposition parties. As has already been exhibited, the opposition can continue to keep a minority government in situ, alternatively, they are free to put themselves to the voters.
Current polls would suggest a Conservative majority. Potential electoral pacts confuse the issue more. Alliances between the Remain wing could lead to a murky coalition. Conversely, a Conservative alliance with the Brexit Party could lead to yet another outcome.
Whatever the rainbow of the House of Commons might present, then next July could lead to a delayed version of “deal or no deal”, to take effect from 31st December 2020. Alternatively, the can could be kicked to December 2022 or to infinity and beyond.
Even in the event of a fall back position of exercising GATT Article XXIV, the fresh back stop would become maintenance of existing arrangements for a notional 10 years.
There are further considerations to add to uncertainty. Article 50, as already stated, provides for a process “ in accordance with its own constitutional requirements”. This is in keeping with international law, specifically the Vienna Convention on the Law of Treaties. Although the EU is not a state in its own right, many members of the EU are signatories, not least the UK.
In essence, the role of the government as the executive is recognised. For Parliament to make its own amendments and direct the executive as it has done cold be argued to be unlawful. Indeed, the Speaker, John Bercow’s, own behaviour could be argued to have been in contravention of precedent, therefore the constitution. Even a second, third and fourth extension of the WA could be argued to be unlawful, with question marks over the ECJ’s direction of considering ever closer union is ambiguous.
Domestically, as highlighted by the architect or proxy architect of the Benn Act highlighted a requirement under the Constitutional Reform and Governance Act that any treaty should be laid before the House for 21 days before it can be ratified. Unless Parliament the measures to shorten the time scale, the deal would inevitably be ruled unlawful.
It may be reasonable to surmise that if the Boris deal is not to be agreed, with appropriate provisions made, then those who have tried to hinder “no deal” have in fact created one of the outcomes they sought to avoid, arguing against limited time when their bill was pushed through in more or less one day. A further referendum appears to be dependent on every single EU member state allowing a further extension of dubious lawfulness.
Whatever its imperfections, and there are many as would be agreed by all sides in the debate, the Boris WA becomes the only compromise solution that allows all parties to claim adherence to manifesto commitments.
Those in the House of Commons, possibly soon to be re-branded as the Tower of Babel, now appeal for extra time to debate what they have been debating since 23rd June 2016. They may well have been thwarted by the terms of extension as imposed by the EU. Finally, we seem set to decide between “leave with a deal”, “no deal”, Remain and GATT Article XXIV – perhaps.