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Broken Brexit?

Hard as it is to believe, the British voted to leave the EU almost 1,200 days ago—yet the country seems no closer to Brexiting than it was on June 22, 2016. How have we arrived (or rather, not arrived) at this point? 

Nine months after the referendum, in March 2017, the UK parliament invoked the Treaty on European Union’s Article 50, which allows countries to voluntarily leave the bloc. It lays out these steps for withdrawal: First, the withdrawing country must notify the European Council (effectively the EU’s governing—though not legislating—body) of its intention to withdraw—which in turn starts a two-year clock until formal exit. During the intervening two years, the withdrawing country and the EU negotiate the terms of the country’s exit (i.e., what the relationship between the two will look like once the country has left; what trade terms will be; how they will handle questions of immigration, cross-border travel, etc.). Once the two sides reach an agreement, it must be approved by the European Parliament as well as the Council (as well as undergo whatever approval process required by the withdrawing country’s government). If they do not reach an agreement, the withdrawing country automatically exits the EU two years after triggering Article 50—unless both sides agree to extend the negotiations.  

From the outset, negotiations have been fraught—for several reasons. Among them, parliamentary democracies are wont to struggle with such vague referenda.  Consider: The British people voted to leave—they didn’t vote on in what manner. Consequently, much of the explicit and implicit debate in the UK has revolved around what the people meant by “leave”—did they mean leave, but only with a deal? And what kind of deal? Or, damn the torpedoes, leave with or without a deal?

Another struggle has revolved around Parliament’s role in the Brexit process—whether the government should be able to unilaterally negotiate and implement a deal with the EU, or whether Parliament should get a “yea” or “nay” on any agreement. Incidentally, parliamentary sovereignty hasn’t really been much of a question in the UK since 1688 or so. Which explains why former-PM Theresa May’s apparent initial inclination to conduct negotiations without much parliamentary involvement provoked something of an uproar. A further question was whether parliament could prevent the government from leaving the EU without a deal (dubbed a no-deal Brexit). In other words, if the government couldn’t reach an acceptable deal with the EU within the two-year window, could parliament force the government to request an extension for negotiations from the EU? Without diving into the intricacies, it suffices to say parliament won these debates, and as a result wrested substantial control from May over the ultimate outcome of Brexit negotiations.

(As a brief aside, such procedural questions can be trickier to answer in the UK than in a place like the US, say, given the absence of a written constitution or the practice of judicial review. Rather than relying on the confines of a written, legal document, in the face of unprecedented constitutional questions, the UK must feel its way through one by one. While this system seems to have functioned relatively well to date, whether the country will successfully navigate all the way to a final Brexit without provoking a major constitutional crisis remains to be seen.)

With Brexit’s fate in parliament’s hands, then, the process has become inevitably and infinitely politicized. That parliament is divided relatively evenly has made agreement (with each other, let alone with the EU) nigh impossible. Then, too, there are myriad complicating factors—not least of which is the EU’s thinly veiled intention of making the UK’s exit as painful as possible as a deterrent to aspiring copycats. There are also issues which touch nerves that are (in some cases) centuries old, like what to do about the Ireland/Northern Ireland border—a historical hotspot which didn’t really cool until some 20 years ago. Then, too, there’s roughly a millennium of history between the UK and the Continent that must play a role in coloring negotiations.

Against all odds, then, May and the EU did manage to reach an agreement in late 2018—though it included several provisions unpalatable to parliament, including a so-called Irish backstop that some feared would effectively keep the UK in the EU indefinitely while stripping the UK of any membership rights. The March 29, 2019, deadline consequently came and went—first with an extension to April 10, 2019, and one subsequently to October 31, 2019.

With May stymied at every turn—and parliament unwilling to approve her agreement with the EU—she resigned as PM in late July, and Boris Johnson succeeded her. The fireworks commenced shortly thereafter. From the outset, Johnson has clearly stated he will take the UK out of the EU—with or without a deal—on October 31. In late August, Johnson asked the Queen to prorogue (that’s British for dismiss) parliament from mid-September through October 14—a move ostensibly aimed at limiting parliament’s time in which to block an October 31 Brexit, with or without a deal. Parliament returned from its summer recess on September 3 with only a week to take any legislative action it intended before prorogation.  

Which brings us to the current machinations. This week’s events have revolved around the opposition’s last-ditch attempts to tie Johnson’s hands and prevent a no-deal Brexit. And while they may have indeed succeeded on that front, they may also have succeeded in prompting a constitutional crisis. The government is now in a bind: Parliament has passed a bill requiring Johnson, if he is unable to reach a new agreement with the EU by October 19, to then request an extension of the UK’s deadline. If the EU honours that request, Johnson is required to accept the extension. In other words, the whole world now knows that for all intents and purposes, a no-deal Brexit is effectively off the table.

The opposition claims this takes the UK off the “cliff’s edge” and removes the possibility that the UK leaves without some negotiated terms in place. The PM and the majority, though, argue that taking no-deal off the table hands control over the negotiations fully to the EU—if the EU knows the PM cannot take the UK out of the EU without a deal and must request an extension, what incentive does the EU have to offer better terms to the UK? The EU can wait the PM out and hope his government falls shortly thereafter so the EU can negotiate with a more euro-friendly representative.

Not to be outdone, though, Johnson proposed calling a snap election. The motivation is twofold: First, 21 Conservative Party MPs recently defected, siding with the opposition in taking a no-deal exit off the table. Those MPs have since been summarily kicked out of the party. In the meantime, though, Johnson has lost his majority. So calling a new election would potentially allow him to strengthen his hand (assuming, of course, the Conservatives won more seats—not a terrible assumption based on current polling. Though we also know how reliable polls can be …). But Johnson’s hand would also be strengthened in that most observers would view an imminent snap election as an implicit second Brexit referendum. Win that vote, and the public would have seemingly given Johnson a mandate to take the UK out of the EU, with or without a deal.

Historically, the opposition is keen for an election because it always offers the opportunity for it to take the majority—particularly in fraught times such as these. And indeed, Labour Party leader Jeremy Corbyn had recently signaled his enthusiasm for an election. But in a rather stunning turn of events, parliament voted down the call for elections this week. Labour’s argument was that it didn’t want to hold an election until the “spectre” of a no-deal Brexit was firmly off the table. Conservatives have, naturally, suggested the reluctance is rather related to Labour’s knowledge it wouldn’t win. And indeed, it might not—many Brits are hesitant about the possibility of a Corbyn-led government for many reasons.

The question is clearly, “Now what?” A no-deal Brexit seems off the table. Elections seem to be, too. One thing seems certain: We probably haven’t seen the last card from either Corbyn or Johnson—which makes for a promising continuation of the drama in the weeks to come.