Parliamentarians lack mechanisms, but not the political will, to stop no-deal on 31st October

Posted On: 
5th July 2019

A Prime Minister without a personal mandate from the public and without parliamentary backing will find it incredibly difficult politically to exit without a deal on 31st October, writes Dods Monitoring's Laura Hutchinson. 

The EU has dismissed all suggestions that the backstop be waived from the Withdrawal Agreement, writes Laura Hutchinson.
Credit: 
PA Images

After two missed Article 50 deadlines, the UK is fast approaching another on 31st October. Both contenders to become the next Conservative leader and Prime Minister have pledged to exit without a deal, if striking a new one proves impossible.

But this political posturing may prove to be nothing more than empty pledges designed to convince the Conservative membership of candidates’ true Brexit credentials. In reality, a Prime Minister without a personal mandate from the public and without parliamentary backing will find it incredibly difficult politically to exit without a deal on 31st October and is highly likely to fudge any attempt to pursue one.

Another deal before October is not plausible

The Withdrawal Agreement is not open for renegotiation, and the Irish backstop is part of that agreement. This has been the consistent message from the European Union since MPs first rejected Theresa May’s deal.

Both contenders to become the next Prime Minister have stated emphatically that they will be able to reopen renegotiations, with the aim of either removing the backstop entirely or securing such significant changes to it that the toxic emblem of Theresa May’s deal will be able to pass through Parliament.

This is a suggestion that is implausible for a number of reasons. Firstly, aside from the verbal pledge, the commitment to not reopen negotiations has been enshrined in EU law with details of the extension to Article 50 agreed on the condition that it “excludes any re-opening of the Withdrawal Agreement.” To reopen negotiations represents a legal challenge, as well as a political one.

Secondly, any renegotiations would be unlikely to result in significant changes to the Irish backstop. The EU has dismissed all suggestions that the backstop be waived from the Withdrawal Agreement on a pledge that alternative arrangements be sought during the implementation period, and any time limit or assurance that it will not be triggered is not possible due to the fact that it is an insurance policy, designed to be reluctantly triggered if necessary.

So, does this make a no-deal exit inevitable? 

Whilst MPs have no clear path to prevent no-deal …

During Theresa May’s premiership, MPs sought to prevent no deal by passing legislation that ultimately created a legal mechanism whereby Parliament could instruct the Prime Minister to request an extension to Article 50 in the absence of Parliament ratifying a deal before the exit deadline. The introduction of this legislation was only possible through MPs passing amendments to motions that the Government were obliged to table setting out their Brexit ‘next steps’. These amendments allowed MPs to take over the parliamentary agenda and introduce the Bill.  A new Prime Minister will be under no obligation to bring forward any amendable motions before October 31st and could in theory oversee a ‘zombie Parliament’, giving MPs no opportunity to bind a Prime Minister through legislation.

There still remains the possibility that the Opposition will seek to bring down the Government through a vote of no-confidence and have a new Prime Minister seek an extension to Article 50, with the understanding of seeking a new deal or a second referendum. However, a vote would operate on a razor thin margin and the timetable is incredibly tight.

Importantly, neither of these scenarios necessitate an extension to Article 50. An extension requires unanimous agreement between all EU member states and must be ratified in EU law to take effect, even if the Government attempts to amend the exit day in UK law. The only definitive piece of legislation that can take no-deal off the table is a Bill that forced the Prime Minister to unilaterally revoke Article 50, and this ‘nuclear option’ would not have majority support in the House. 

… Politics will almost certainly prevent no-deal

A new Prime Minister will be fully briefed on the risks and the instability associated with a no-deal exit. They will be made fully aware by the opposition that they do not hold office on a personal mandate. Votes in Parliament will remind them that they govern on a razor thin majority and a pursuit of no-deal could bring down the Government. The Speaker will make sure they are retold the fact that the UK is a parliamentary democracy, and Parliament voted to reject no-deal under any circumstances in March.

It will, if enough pressure is applied, become near impossible to pursue a “do or die” approach to exiting the European Union on 31st October without causing a significant constitutional and political crisis, and a new Prime Minister is unlikely to want this legacy or distraction.

Another request to extend Article 50 is more likely, but there is no guarantee this will be granted by the EU27 who will undoubtedly require a detailed plan from the Government of what its next steps will be.

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