The Government’s Brexit deal – comprising the Withdrawal Agreement (WA) and the Political Declaration (PD) – was overwhelmingly defeated in the House of Commons on 15 January 2019 by 432 votes to 202.
As a result, the Prime Minister set out to seek further negotiations with the EU on the ‘Northern Ireland/Ireland backstop’. She has stated that a change to the backstop would win a majority in the House of Commons for the deal.
EU leaders have however stated repeatedly that they are unwilling to re-open re-negotiations on the WA, but would consider making changes to the PD.
If the Government is unable to command majority support in the House of Commons for her deal, there is a “heightened prospect of the UK leaving the EU without a deal on 29 March 2019” – unless, of course, Article 50 period is extended.
The vote today avoids bringing back the same deal and risking another defeat in a ‘meaningful’ vote. It is – according to the Government a ‘neutral’ and non-binding ‘amendable’ vote: “That this House welcomes the Prime Minister’s statement of 12 February 2019; reiterates its support for the approach to leaving the EU expressed by this House on 29 January 2019 – and notes that discussions between the UK and the EU on the Northern Ireland backstop are ongoing.”
The Government clearly choosing to ignore the warnings from the Bank of England, business and commerce for clarity with 6 weeks to Brexit – and the next opportunity for a vote postponed until the end of February.
On 7 February 2019, the President of the European Commission reiterated that the EU is not willing to reopen the WA – but expressed openness to adding wording to the PD. The Prime Minister and the European Commission President will meet again before the end of February to take stock of discussions.
The Leader of the Opposition, Jeremy Corbyn MP, wrote to the Prime Minister on 6 February and suggested the Labour party could support the WA if changes to the PD, including a commitment to a permanent UK-EU customs union, were enshrined in law. The Government has rejected the proposal for a customs union as it would prevent the UK from pursuing an independent trade policy.
The Prime Minister has stated her opposition to extending Article 50.
The Leader of the Opposition has however suggested that an Article 50 extension is now inevitable given that neither the legislation needed in place for exit day, or the preparations required in a no-deal Brexit will be in place.
EU leaders have indicated a willingness to extend Article 50 – for a “specific purpose and time limited period”, but re-iterated that they care unable to re-open negotiations on the WA.
1.1 The Meaningful Vote postponed
On 25 November 2018, the European Council – including Theresa May on behalf of the UK – approved the Withdrawal Agreement (WA) and the Political Declaration (PD).
The House of Commons vote to approve both the WA and PD was scheduled for 11 December 2018 – but was postponed by the Prime Minister in recognition of the widespread opposition to the WA in the House of Commons.
Since the approval of the WA on 25 November, EU leaders have however been adamant that they are unwilling to re-open negotiations on it. On 29 November, the EU’s chief Brexit negotiator Michel Barnier told the European Parliament: “Given the difficult circumstances of this negotiation and given the extreme complexity of all the issues of the British withdrawal, the treaty that is on the table is the only deal possible”.
1.2 EU Assurances to the UK on the Backstop
On 13 December EU Leaders – the European Council – stated that: “The Union stands by this agreement and intends to proceed with its ratification. It is not open for renegotiation”.
The European Council underlined that the backstop is intended as an insurance policy to prevent a hard border on the island of Ireland and ensure the integrity of the Single Market. Further, were the backstop to be triggered – it would apply temporarily.
In an exchange of letters between Prime Minister Theresa May and the Presidents of the European Council (Donald Tusk) and European Commission (Jean-Claude Juncker) on 14 January 2019, the EU sought to provide further assurances to the UK.
The letter from Presidents Juncker and Tusk sought to reassure the Prime Minister of the legal weight of the December 2018 European Council Conclusions in which it had emphasised the EU’s intention to conclude a future relations agreement quickly, so that the backstop “would only be in place for as long as strictly necessary”. We covered the letter in a previous posting at:
The EU letter stressed the link between the WA and the PD as “part of the same negotiated package” and pledged to establish the Commission negotiating structure for the future relations agreement “directly after signature” of the WA “to ensure that formal negotiations can start as soon as possible after the withdrawal” of the UK.
1.3 Political Declaration and Future Relations
The EU has indicated that while it is unwilling to reopen negotiations on the WA it would be willing to discuss changes to the PD – setting out more clearly what the UK’s future relationship with the EU will be. The Labour party has also proposed changes to the PD to provide clarity on the future relationship and reduce the likelihood of the backstop being invoked (see below).
The PD outlines a set of commitments on a proposed future agreement on the UK-EU relationship and provides some parameters for the future negotiations.
It refers to:
- the ending of free movement of people between the UK and EU – which rules out EEA/Single Market membership;
- the development of an independent trade policy for the UK – which rules out a permanent UK-EU customs union.
The PD is non-binding – and the UK and EU could move beyond these parameters in a future agreement. Paragraph 138 states that once the WA has been approved by the UK and EU, preparatory work would begin on negotiations for the future relationship with both parties committed to “best endeavours” to ensure the future relationship enters into force by the end of the envisaged post-Brexit transition period – 31 December 2020 – or December 2022 at the latest and if the transition needs to be extended.
It states that the priority will be to find alternative, permanent arrangements to ensure there is no hard border between Northern Ireland and Ireland.
It remains unclear what these permanent arrangements to prevent a hard border emerging between Northern Ireland and Ireland would be and how these might be different from the previously discussed backstop arrangements. Paragraph 27 of the PD refers to consideration of facilitative arrangements and technologies for ensuring there is no hard border in Ireland – but doubts have been expressed as to whether such arrangements can provide a solution.
1.4 Commons Rejection of WA
The House of Commons on 15 January 2019 rejected the deal by 432 votes to 202 – a majority of 230.
That night – following the vote – the Prime Minister said she would hold a series of meetings with colleagues, the DUP and “senior parliamentarians” in an attempt to find a deal that could gain the support of Parliament.
On 16 January Theresa May survived a vote of confidence in her government – and again appealed to colleagues, the Democratic Unionist Party and senior MPs to meet her for talks on reaching consensus on a Brexit ‘Plan B’.
Immediately following the House of Commons vote, European Commission, President Juncker, maintained that the deal was a “fair compromise and the best possible deal” and “the only way to ensure an orderly withdrawal”.
On 16 January in a speech to the European Parliament, the EU’s chief Brexit negotiator, Michel Barnier, also insisted that the negotiated WA represented the “best possible compromise” and its ratification remained “necessary”. He also said that “the backstop which we have agreed with the United Kingdom must remain a backstop and it must remain credible”.
Barnier said that if the UK chose “to change its red lines, and to be more ambitious and go beyond a simple free trade deal in our future relationship, then the EU would be ready to immediately support this evolution and respond favourably”.
1.5 Government statement on Brexit and votes on motion, 29 January 2019
On Monday 21 January, Theresa May made a statement in the Commons – as she was required to do in accordance with the European Union (Withdrawal) Act 2018 – setting out how the Government “intends to proceed” in relation to the Article 50 negotiations and tabled an ‘amendable’ neutral motion saying that Parliament had considered the statement. The motion was debated and voted upon on 29 January.
On 16 January, Parliament’s “Exiting the EU” Committee recommended that a series of indicative votes be held on options for proceeding with withdrawal and negotiated a new relationship framework with the EU.
In the end, the Commons voted in favour of an amendment by Graham Brady MP – with the support of the Prime Minister and the Government. It said that the support of the House for the deal was contingent upon “replacing” the backstop with “alternative arrangements.”
A second amendment – tabled by Caroline Spelman MP – rejecting the possibility of a no-deal Brexit was also approved by 318 votes to 310. Note that this amendment has no direct legal effect. It stops short, for example, of providing a legislative mechanism by which Article 50 would be “revoked” in the absence of a ratified deal on 29 March 2019 – unlike the amendment proposed by Yvette Cooper MP.
The Prime Minister took this amendment as a mandate to seek legally binding changes to the withdrawal agreement and backstop – guaranteeing “no return to a hard border between Northern Ireland and Ireland.”
On 30 January, The President of the European Council, Donald Tusk, re-iterated that: “The EU position is clear and consistent. The Withdrawal Agreement is not open for renegotiation. Yesterday, we found out what the UK doesn’t want. But we still don’t know what the UK does want.”
Labour leader Jeremy Corbyn, said that as the House had “emphatically voted to reject the no-deal option” he would now be prepared to enter talks with the Prime Minister to discuss where progress might be made to reach a deal which Labour is prepared to support. These talks took place the next day.
During the debate on 29 January, the Prime Minister said that a revised deal would be brought back to the House for a second meaningful vote “as soon as we possibly can”. If a revised deal is not brought back to the House by Wednesday 13 February – the Government will make a statement and, again, table an amendable motion for debate the next day.
1.6 Proposals for Alternative arrangements to Backstop
On 30 January 2019 the Prime Minister’s spokesman told reporters that Mrs May is considering “three possible alternative arrangements to the so-called Irish backstop”. The BBC reported on 4 February that the alternatives to the backstop that the Prime Minister wants to discuss with EU leaders include:
- a “trusted trader” scheme to avoid physical checks on goods flowing through the border
- “mutual recognition” of rules with the EU
- “technological” solutions
- Malthouse compromise
The Malthouse-Compromise is supported by MPs from both the ‘leave’ and ‘remain’ wings of the Conservative and has two main elements:
- Firstly, it will look at alternative arrangements that have already been proposed to the backstop;
- Secondly, if these prove unacceptable to the EU, the UK would approach the EU with a ‘managed no-deal’ proposal – in which the UK asks the EU to honour the Withdrawal Agreement without the backstop – and under which the UK promises to pay relevant financial contributions for this transition period.
Liberal Democrats leader, Vince Cable MP, has objected to civil servants working with backbench MPs – suggesting in a letter to the Cabinet Secretary, Mark Sedwill, that this might breach guidelines on the impartiality of civil servants laid out in the Cabinet Manual.
On 6 February, European Commission President, Jean-Claude Juncker met the Irish Prime Minister, Leo Varadkar, and issued a joint statement reaffirming that the “Withdrawal Agreement is the best and only deal possible” and “is not open for renegotiation”.
“So-called alternative arrangements can never replace the backstop. We need the backstop. We need the withdrawal agreement. And – when it comes to future relations – we can look into alternative arrangements – but they can never replace the backstop.”
Mr Tusk also commented: “I’ve been wondering what that special place in hell looks like, for those who promoted Brexit, without even a sketch of a plan how to carry it out safely”.
On 7 February the Prime Minister held further talks with the Presidents Juncker and Tusk. Mrs May suggested the three options for changing the backstop..
After their meeting in a joint statement, Mrs May and Juncker said: “The prime minister described the context in the UK Parliament, and the motivation behind last week’s vote in the House of Commons seeking a legally binding change to the terms of the backstop. She raised various options for dealing with these concerns in the context of the withdrawal agreement in line with her commitments to the Parliament.
President Juncker underlined that the EU27 will not reopen the withdrawal agreement, which represents a carefully balanced compromise between the European Union and the UK, in which both sides have made significant concessions to arrive at a deal. President Juncker however expressed his openness to add wording to the political declaration agreed by the EU27 and the UK in order to be more ambitious in terms of content and speed when it comes to the future relationship between the European Union and the UK. President Juncker drew attention to the fact that any solution would have to be agreed by the European parliament and the EU27.
The prime minister and the president will meet again before the end of February to take stock of these discussions.
1.7 Discussion of Extension of Article 50
The Prime Minister has been clear that she intends to deliver on the 2016 referendum result in taking the UK out of the EU. She has also spoken against the possibility of extending Article 50 and repeatedly stated that the UK will leave the EU on 29 March 2019.
“I’m clear that I’m going to deliver Brexit, I’m going to deliver it on time, that’s what I’m going to do for the British public. I’ll be negotiating hard in the coming days to do just that.”
Corbyn has pointed out that even if the Prime Minister’s deal were to somehow achieve a majority in this House next month – there is no chance that the necessary legislation -primary legislation and an extensive catalogue of secondary legislation – some 8 Acts of Parliament and 600 statutory instruments – could complete the process of becoming law by 29 March.
An extension to Article 50 would also be required under the Labour party’s favoured scenario of holding a general election, while a longer extension would be required if the option favoured by the Liberal Democrats and cross-party campaigners of another referendum (with an option to remain) was adopted.
Foreign Secretary, Jeremy Hunt MP, indicated on 31 January 2019 that an extension of Article 50 could be requested if the WA is approved shortly before 29 March, in order to provide for extra Parliamentary time to pass legislation to prepare for Brexit.
Section 13 of the European Union (Withdrawal) Act 2018 provides that the UK cannot legally ratify the deal until the Commons has approved a resolution approving both the negotiated withdrawal agreement and the framework for the future relationship – and European Union (Withdrawal Agreement) Bill becomes law.
A report by the Institute for Government says it is “increasingly unlikely that the Prime Minister will be able to get the six outstanding Brexit bills through Parliament in time if there is a no-deal Brexit on 29 March.”
We covered the Bills in previous postings. They are: the Trade Bill, Agriculture Bill, Fisheries Bill, Immigration Bill, Healthcare (International Agreements) Bill and the Financial Services Bill.
In addition, only 142 of the 600 statutory instruments required to prepare the statute book for exit day had made their way through Parliament as of 11 February 2019.
A further 401 had been ‘laid’ using the “medieval” Henry VIII powers to override Parliament.
A request by the UK to extend the Article 50 negotiating period would require unanimous agreement by the EU27 leaders in the European Council. T he European Commission and Member State representatives have indicated that their response to such a request would depend on the reasons the extension was being requested, and that they would not favour an extension to re-open negotiations on the WA.
1.8 Labour party proposals and Government response
In a letter to the Prime Minister on 6 February, Jeremy Corbyn said that the Government would need to enshrine five changes to the Political Declaration in law to secure Labour support for a Withdrawal Agreement. The changes would provide for the following:
A permanent and comprehensive UK-wide customs union, involving alignment with the union customs code, a common external tariff and an agreement on commercial policy that includes a UK say on future EU trade deals.
Close alignment with the Single Market, underpinned by shared institutions and obligations, with clear arrangements for dispute resolution.
Dynamic alignment on rights and protections so that UK standards keep pace with evolving standards across Europe.
Clear commitments on participation in EU agencies and funding programmes, including in areas such as the environment, education, and industrial regulation.
Unambiguous agreements on the detail of future security arrangements, including access to the European Arrest Warrant and vital shared databases.
The Prime Minister responded to Mr Corbyn’s letter on 10 February rejecting the changes. May’s letter referred to the wording within the Political Declaration that recognised that the UK would have an “independent trade policy” – with the ability for the UK to “strike our own deals”. She also said that the Government did not support automatic alignment to EU rules on workers’ rights or environmental protection – but would be “prepared to commit to asking Parliament whether it wishes to follow suit whenever the EU changes its standards in these areas”.