Whither Brexit?

In light of yesterday’s drama in the House of Commons, I thought I’d make a few observations on what these developments mean for Brexit.

On Tuesday, MPs rejected Theresa May’s Brexit deal for a second time. As promised, MPs were then given a chance to vote on whether to approve leaving the European Union without a deal on March 29. Although the Government’s motion rejected this course of action, it was ultimately amended to rule out a no-deal Brexit at any time. The amended motion was in turn carried, despite the Government’s last-minute decision to whip their MPs against it.

However, this motion is not legally binding. One could argue that it’s politically binding, but it does not change the fact that, under UK and EU law, a no-deal Brexit on March 29 remains the default. To avoid this, one of the following must occur:

  • MPs approve a withdrawal agreement;
  • the negotiation period under Article 50 is extended; or
  • the Article 50 notice is rescinded entirely, thereby cancelling Brexit.

This leaves the UK in a very awkward position. It’s not enough for MPs to repeatedly say what they don’t want; at some point, they will have to say what they do want. This is especially important since postponing Brexit day will require the unanimous agreement of the other 27 EU member states, and Brussels has indicated that this will only be forthcoming if there is a good reason to grant it. In other words, the UK will have to convince the EU that a delay can actually solve the problem instead of simply kicking the can down the road.

Unfortunately, it’s still not clear what kind of Brexit MPs would support. Without this clarity, it will be hard for the UK to argue for more time. A series of indicative votes in the Commons might be a way forward since it could allow a consensus option to emerge. On the other hand, the 2003 indicative votes on Lords reform failed to produce a clear outcome, so the success of this strategy is far from certain. Another option would be to put May’s deal before the people in a second referendum, though this option is unlikely to win parliamentary backing without clear support from Jeremy Corbyn.

The bottom line that a viable solution to the Brexit problem remains elusive, so this saga is likely far from over.

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