Brexit: Tick Tock, Tick Tock – Plan B: Parliament must Withdraw Article 50

 

Marley was dead: to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it. And Scrooge’s name was good upon ‘Change, for anything he chose to put his hand to.
Old Marley was as dead as a door-nail.

Charles Dickens, A Christmas Carol

The deal, once known as Chequers is dead: to begin with. There is no doubt whatever about that. Yes, old Chequers is dead as a door-nail. (with apologies to Dickens). And like Marley’s ghost, May’s deal will surely make another appearance before it’s all over.

In a move of such epic cowardice or perhaps epic Machiavellian strategy,  Prime Minister May decided to pull the vote on her Brexit plan. She may be able to secure modest changes to swing a few votes, but the stench from this deal was so powerful, that sprinkling a few rose petals and lavender on it won’t result in a yes vote. She has, last night, survived a vote of no confidence. While Labour may try to initiate a no confidence vote in the government, it’s not at all clear they will have the votes to be successful.

As plan A has been left to drown in a bathtub, it’s time to seriously pursue a plan B. As I highlight below, the only Plan B that can happen in time and cause the least amount of disruption is for Parliament to exercise their sovereignty and withdraw Article 50, thereby leaving the UK in the EU. The referendum is not legally binding and in fact Parliament MUST reverse Brexit if they believe it is best for the country.

Now that May’s deal looks all but dead, it’s time for a backup plan. The problem is not that there is NO plan B, but that there are many ill formed plan Bs, only one of which can be executed in time for the March 29th deadline. Any plan B that requires an alternative Brexit deal will likely require extension of Article 50 deadline which itself would require approval of all 27 EU members and face equal challenges in garnering parliamentary approval. A second referendum would also not be completed in time.

Below are the primary alternatives to the current proposal. None of which have a clear chance of getting through Parliament and none are clearly superior to continuing EU membership. Parliament must therefore withdraw Article 50.

1. Modify the current deal: By pulling the vote, May has effectively made this her plan B. This strategy suffers from the simple problem that the EU has already approved the deal and since May pulled the vote, the EU has only offered to clarify their position. Given how many votes she needs, clarification alone will not secure the votes. However, her survival of the no confidence vote marginally improves the chances for a “clarified” version of her plan.
2. Norway style deal: There has been much discussion about a Norway style deal. A Norway style deal would have the UK in the single market via the European Economic Area (EEA) and the European Free Trade Area (EFTA).  Norway’s deal includes substantial ongoing contributions to the EU budget (€400M/year), requirements to be a rule taker while having limited input on the rules and requires them to honour the four freedoms (including freedom of movement of labour). Norway has no representation in the European Parliament, Commission or Council.

   Norway is not in the customs union and so is free to set their own tariffs as well as negotiate their own trade deals. Like May’s deal, Norway is not part of the Common Agriculture Policy (CAP) and Common Fisheries Policy (CFP).The Norway model presents several challenges. First, being outside the customs union would require a hard border with Ireland. Therefore, a Norway style deal would have to account for the Irish border. Second, Norway has signed up to the four freedoms, including freedom of movement of labour which many, if not most, of May’s party wouldn’t support.  Third, contributing to the EU budget as well as being a rule taker without input into the rules would run counter to the degree of sovereignty Brexiteers have promised.

3. Second Referendum: A second referendum is also gaining serious currency as a plan B. The challenges with a second referendum are three-fold: First, it’s far from clear whether parliament would approve it. Facing a crash out v. second referendum option it’s likely the second referendum option would have a fighting chance in parliament among a plethora of less than ideal plan Bs, but approval is far from certain.  The second challenge, is to define the specific questions on the second referendum. On its face the issue is simple – will there be two or three options? Under the two-question alternative the options will likely be remain in the EU or the May deal (or remain v leave with no deal, particularly if the May deal is rejected). Under the three-question referendum, the questions could be 1) support the May deal, 2) remain in the EU (i.e. withdraw article 50) or 3) exit with no deal. While it’s unlikely the Brexiteers in Parliament will approve any option excluding a no deal Brexit on the referendum, they may not have the votes to force a no deal option on the referendum. Further, presented with three questions, risks none of the three garnering majority support. The third challenge is time. The clock is ticking.  A second referendum will require at least six months if not longer from the date MPs vote to approve a second referendum through to the actual vote. This blog from LSE illustrates why six months is a reasonable minimum for a second referendum. 

   With holidays quickly arriving, it’s highly unlikely that a second referendum will even be brought to MPs for a vote until early January and therefore  July, at a minimum, when a referendum could conclude. Hence a second referendum would necessitate a material delay in Article 50 (which itself would require 27 EU member approval as noted above).

4. No deal Brexit – would you like it hard or soft?: A no deal Brexit is generally only favoured be Brexit extremists. The hard no deal (AKA crash out) is basically what it sounds like. Crash out with no deal. While the details of what happens in a crash out is beyond the scope of this article, suffice it say that nearly every sector of the UK economy will be affected. A soft no deal would be a no deal exit with temporary side deals in place to ensure that enough food, drugs and flights, etc could continue beyond March 29. Clearly both options are bad.
5. Withdraw Article 50 via exercise of Parliamentary sovereignty: Contrary to myth, in the UK referendums are not binding. Specifically, referendums are trumped by the concept of Parliamentary sovereignty,  wherein Parliament has ultimate sovereignty. This means that parliamentary decisions trump anything coming out of a referendum. Withdrawing Article 50 will create clarity and certainty. It’s clear that any option on the table is inferior to continuing membership and allowing a no deal exit would be reckless in the extreme. Of course withdrawing Article 50 would require a sufficient number in parliament to grow a spine, an organ which seems to be in short supply these days.

   While some would argue that withdrawing Article 50 would be contrary to the will of the people, it is very hard to argue that the 52% who voted for Brexit voted for the current shambolic freefall we are witnessing. Further, as the current Oxbridge educated elite have trouble navigating the complexities of exiting the EU can anyone say the actual referendum was a fully informed decision? Do voters really understand what trading under WTO rules mean? What the Open Skies agreement entails? How long it takes to negotiate a free trade agreement (It took Canada and the EU seven years)? How many trade agreements and treaties the UK participates in via the EU? These are the tip of a very large iceberg of detail that it is Parliament’s responsibility to understand and convert into legislation.  While the will of the people shouldn’t be ignored, at the end of the day it is Parliament’s duty to act in the best interest of the country even if it is contrary to the referendum vote.Further, Parliament could justify withdrawing Article 50 on the basis of the general misinformation leading up to the referendum as well as the fact that Vote Leave broke the law in carrying out their campaign in support of Brexit.  In fact the UK High Court should be concluding such a case imminently. Regardless of how the court rules, the facts could result in enough MPs feeling justified in withdrawing Article 50.In order to mollify the Brexiteers, a withdrawal of Article 50 could include a second referendum in 5-10 years time. This would be sufficient time for the UK to help reform the EU,  sufficient time for the public to become fully informed and sufficient time to work through all the details necessary to assure a proper exit. The Brexitisas in Parliament should admit that the UK doesn’t have adequate plans in place to address the chaos of no deal and therefore it’s in the best interests of the country to remain in the EU.

Game theory suggests Parliament should withdraw Article 50

So how will the Brexit end game be resolved? May’s plan without major modifications is doomed to fail (the +100 MPs who voted no confidence in her are alone sufficient to kill May’s deal). Similarly, a majority in Parliament likely would not permit a no deal exit. Only one other option could be executed before March 29 and provide the certainty and clarity the country so desperately needs – withdrawing Article 50. If the Prime Minister can’t get the votes for her plan, Parliament should quickly move to withdraw Article 50. A necessary, but admittedly unlikely, action. One requiring Parliament to muster the bipartisanship, selflessness, logic and courage heretofore in short supply. Very unlikely indeed. But perhaps, staring into the abyss, Parliament and the PM will do the right thing. Finally.