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Mexican Standoff

maandag 25 juni 2018, analyse van dhr Prashant Sabharwal

De deadline van de brexit komt steeds dichterbij, maar over de toekomst van het Verenigd Koninkrijk blijft veel onduidelijk. Hoe staat de regering van May ervoor? Prashant Sabharwal maakt de balans op: het Verenigd Koninkrijk is meer dan ooit afhankelijk van de gunst van Europa.

With the date of the United Kingdom’s withdrawal fast approaching, it is becoming increasingly evident that the British government still has no clear plan, relies on wishful thinking and is running out of viable options. To prevent a complete disaster, a much more targeted salvaging operation might be required.

Almost two years ago, on a night, as many Britons were still blissfully unaware of what was going on across the nation, a well-known recent figure of British politics stepped up and had his voice heard. It was the voice of a man who had fought for what had appeared to be a lost cause, but through a cunning mix of mendacity, polarization and old-fashioned nostalgia managed to turn it around. His country, having made a decision that shocked many of those who had claimed to be knowledgeable (or whose profession entailed the dispensation of such knowledge), now was about to witness the hyperbolic spectacle of his rhetoric. Hoarse from all the shouting, both literal and proverbial, the leader of the United Kingdom Independence Party stood up in a provisional tent and spoke up: “Let 23 June go down in our history as Independence Day!”. Apart from the fact that this throwaway applause line must sound rather offensive to all those countries formerly colonized by the United Kingdom, it also has not exactly aged well.

You see, Mr Farage was projecting the illusion that a vote to withdraw from the European Union was the hard part. Alongside his Conservative fellow travellers, Boris Johnson and Michael Gove, he created the impression that everything would be smooth sailing thereafter. After all, were the Germans not smart about economics and cognizant of the fact that for their economy to survive that their cars would also have to be sold in Britain? Would the United States not be loyal in the spirit of a truly “special relationship” and offer the United Kingdom a preferential free trade deal? Of course, the Anglophone countries like Canada, Australia, New Zealand and South Africa would also be beating down the doors to England’s greenest hills in order to secure the deal of a lifetime? More importantly, was the European Union not a project of sclerotic bureaucrats and naïve politicians who never understood the traditions, spirit and pride of a true seafaring nation anyway? Brexit would be good for Britain, good for Europe and good for the world.

The Independence Day Fallacy

Indeed, if you were part of the echo chamber only listening to what you wanted to hear, that would sound rather logical, wouldn’t it? Alas, the problem is that reality has a rather cruel way of intruding on the populist castles built on puffy clouds in the sky. Instead of climbing into an ivory tower of happiness and prosperity, the consequences of “Independence Day” appear much more nuanced, complicated and hard to manage than Mr Farage might have imagined when he was completely drunk on his pyrrhic victory. The truth has revealed itself to be a messy business, and it’s becoming clearer that the British people have been sold a false bill of goods. Indeed, a glance at the latest developments regarding the United Kingdom’s proposed withdrawal from the European Union will clarify this even further.

Government by Chaos

First, there is the issue of the United Kingdom government’s complete lack of competence, paired with an equally concerning lack of consistency. Whereas the prime minister appears to favour some kind of trade arrangement with the European Union, and old Cameronites like former Attorney General Dominic Grieve (more about him later in this piece) wish to preserve most of the edifice of Britain’s current EU membership, extreme Brexiteers led by the somewhat overrated Jacob Rees-Mogg want a complete, resolute and irreversible break with the EU. Instead, they wish to chart a fresh approach (at least that is how they perceive it). The problem is that whilst they know what they do not want, they are refusing to say what are truly aiming for. Like during the referendum campaign, Leave proponents are refusing to accept fiscal, economic, social and political responsibility for the implementation of their proposal. It would be one thing if Brexit proponents laid out a clear plan for the execution of the referendum result – fully costed, fully funded and fully above board regarding the challenges that the country will inevitably face. Unfortunately, no such candour and serious discussion has been forthcoming. Instead, what has held sway in the Brexit camp is a mixture of wishful thinking, incongruous analogies and unresolved issues – paired with a dash of thinly veiled xenophobia and paranoia. The attacks on former Attorney General Dominic Grieve, a Conservative, for his French maternal lineage, are only the latest manifestation of the extremism espoused by many of those on the side of the rupture with Europe.

The fact that Prime Minister Theresa May operates without a parliamentary majority and is dependent on the ultra-conservative Democratic Unionist Party also makes matters even more complicated. Thus, Mrs May is prone to blackmail from three camps: the extreme Brexiteers, the sliver of Europhile Conservative MPs who wish to retain the substance of Single Market membership and potential successors like Johnson and Gove. The fight over retention of some form of customs union or even Single Market membership (rejected by Brexiteers), as opposed to a clean break (rejected by those advocating continued close ties to Europe) has paralyzed the cabinet and is a powder keg waiting to explode.

One sign for this was the dispute between Prime Minister May and her Brexit Secretary, David Davis, over the wording of the backstop clause governing the future UK-Irish border (which would also become the European Union’s external frontier upon Britain’s withdrawal from the EU). The backstop clause would boil down to the UK remaining in the EU customs union for a temporary period after the end of the 2-year transition period after the date of withdrawal. Whilst May saw this as a necessary compromise, Davis (like other proponents of the Brexit side) feared that a transition period without an express temporal limit would lead to a never-ending Brexit process, which would see the UK “leaving” for years, without the transition period ever ending. After much acrimony between Mrs May and Mr Davis, the Prime Minister had to give in – though her allies are essentially maintaining that the climbdown was more of a rhetorical ploy than a concession on substance.

Deep Fissures

Matters are certainly not helped by an internal power struggle going on between different wings of the Conservative Party that can broadly be divided into those who wish to retain close ties to the EU (often overlapping with those who wish to retain Theresa May as Prime Minister) and those favouring a clear break (frequently identical with those wishing to remove Mrs May and replace her with a more conservative leader). The problem is that there is no obvious successor within the Conservative Party to Mrs May. The referendum campaign and the subsequent ascension of Mrs May left pretty much all plausible leadership figures damaged: Boris Johnson was burnt by his refusal to contest for the leadership; and Michael Gove for essentially betraying Boris Johnson by standing for the leadership. Meanwhile, possible other candidates like former Employment Secretary Priti Patel shot themselves in the proverbial foot, whilst Chancellor of the Exchequer Philip Hammond (the only cabinet member to have served as Foreign Secretary, Chancellor of the Exchequer and Defence Secretary – and thus, three of the four traditional “great offices of state”) has rendered himself unpopular with the hardcore Leave camp within the Conservative Party by not making much of a secret of his sympathies for close links to the European Union. Meanwhile, the purportedly leading candidate from the hard right, Jacob Rees-Mogg (the MP from Somerset who has never served in cabinet under either former Prime Minister David Cameron or Mrs May) is more of an entertaining sideshow than a serious contender. His social views on matters like reproductive choice, equal marriage, the relationship of church and state and the country’s imperial legacy are so far out of the mainstream that they would become liabilities in a modern industrialized nation – even one as deeply Eurosceptic as the European Union.

Better Things To Do

Thus, Theresa May stays on – by default, limping to the finish line, as she no longer commands a majority or any meaningful authority within her party. Due to this absence of leadership, she is unable to fire recalcitrant cabinet ministers and call the Brexiteers’ bluff. The only source of consolation for her is the disorganized, ineffective state in which the Labour Party under opposition leader Jeremy Corbyn finds itself. Far from having used the momentum from its better-than-expected performance in the 2017 general election, Labour has gotten mired in internal arguments about the Single Market – perhaps reflecting the inherent contradiction of a party whose senior officials (with the notable exception of Corbyn and Shadow Chancellor John McDonnell) strongly favour remaining part of the European Union, whilst many Labour voters voted to leave the EU.

In essence, British politics (at least as far as Brexit is concerned) has become a Mexican standoff in which all participants can get harmed. The possibility of Brexit turning into a policy disaster is compounded by the European Union increasing its pressure upon the May Cabinet as well. The EU is now raising the possibility of the United Kingdom executing a disorderly withdrawal without a fully negotiated Withdrawal Agreement by 29 March 2019, as stipulated by Articles 50(2) and 50(3) TEU. The consequences of a “no deal” Brexit would most likely be rather substantially negative on the British economy, and certainly not be without its effects on the European Union, either. Then again, the EU has presented a highly professional, methodological and prepared image – in contrast to its British counterparts. Certainly, that also has to do with the fact that the EU is dealing with a range of other issues, as well as the complex dynamics of the politics within its own Member States: Italy just installed a decidedly right-wing government, Angela Merkel’s cabinet in Germany is teetering on the brink of collapse, President Macron is unable to shake off accusations of presidential overreach and unable to get his proposed Eurozone reforms off the ground (paired with plenty of strikes to provide added political seasoning) and Spain’s Pedro Sánchez might still have to contend with the possibility of a fresh election (in a year in which Sweden will also go to the polls in its parliamentary election). It is against this background that Brexit merely appears as a necessary nuisance to be dealt with. This recalls the atmosphere during the purported renegotiation of the UK’s relationship with the EU, carried out on the initiative of David Cameron, when the influx of illegal immigrants to Europe had become the major issue on the EU’s political agenda – thus possibly knocking Cameron’s calculus for a renegotiation of the Treaties completely off-balance. Additionally, the legal structure imposed by Article 50 TEU essentially gives the EU’s negotiators the best possible hand in this game of strategic poker.

On the legislative front, the aforementioned factionalism within the Conservative Party has been affecting the UK Parliament’s ability to actually legislate for the country’s withdrawal from the European Union. The principal piece of legislation (among a myriad of primary and secondary pieces of legislation that will need to be enacted to effect Brexit) is the European Union (Withdrawal) Bill – whose primary features include the repeal of the European Communities Act 1972, an end to the supremacy of EU law (thus ensuring that ECJ jurisprudence will no longer be binding on UK courts – and closing the route towards a preliminary ruling by the ECJ), a conferral of powers to the UK government to amend any secondary legislation whose operation could be affected by Britain’s withdrawal from the EU and a full transposition of EU into British law post-Brexit . Any retained EU law (mainly regulations, as well as other primary and secondary legislation enacted under section 2(2) of the European Communities Act 1972). The conferral of delegated powers was the approach deemed most appropriate by the UK government, considering the sheer amount of legislation that will have to be changed as a result of Brexit. Without a proper legal framework, any directly applicable EU law would automatically cease, leaving considerable insecurity in various fields of law upon Brexit becoming a reality. So far, so good.

The House of Lords, which has to agree to the bill becoming legislation, has attempted to substantially alter the nature of the bill – removing the exit date, mandating a parliamentary vote on the final EU/UK deal, requiring participation in the customs union, and the retention of environmental standards mandated by EU law. These amendments were duly voted down by the House of Lords last week, with the votes necessary to reach a majority being recruited from a group of around 15 Europhile MPs led by former Attorney General Dominic Grieve (yes, he who is now being attacked by extremist Brexit supporters for his French origins). In order to win the vote, Mrs May apparently promised that provision for a parliamentary vote would be made. Upon winning the vote in the House of Commons, Mrs May’s supporters were quick to emphasize that all that had been promised was an open mind regarding a final parliamentary vote on the Brexit deal.

High Stakes

This raised the ire of the pro-Europe group, with both sides suddenly standing off over the “meaningful vote”. The stakes for Mrs May’s survival could not have been higher: in line with the “ping-pong” phase of the legislative process of the United Kingdom, the Withdrawal Bill moved back to the House of Lords (which, barring use of the Parliament Acts 1919/1949, has to agree) – which promptly reinserted the amendments that had been voted down by the House of Commons. Upon that happening, the bill returned to the House of Commons on Wednesday – where the government made a number of last-minute concessions (once again), resulting in the rather unique sight of Mr Grieve voting against his own amendment. Consequently, the amendment regarding a “meaningful” parliamentary vote on Brexit was defeated by 319 votes to 303. Subsequently, the House of Lords ratified the amendments and, therefore, the bill which will upon receipt of the Royal Assent by Queen Elizabeth II be known as the European Union (Withdrawal) Act 2018. The amendment would have essentially transferred leadership of the Brexit process to Parliament, in the event that a final deal with the EU had not been tabled for ratification by 21 January 2019. With the Act’s passage, a “No Deal” Brexit firmly remains a plausible possibility. By renouncing the possibility of a firmly binding vote, Parliament has essentially handed over most of the control of the Brexit process to Prime Minister May and her cabinet instead. What Parliament is likely to get is a final “take it or leave it”-style, en bloc vote on the entire deal – with the government acknowledging in a ministerial statement (shortly before the vote on the Grieve Amendment) that it would be for the Speaker of the House of Commons, John Bercow to determine whether a motion (supposed to be in neutral terms) on the Brexit process would include the possibility of amendment by Parliament. Compared to the stated aspirations of Mr Grieve, this represents a major abdication of parliamentary responsibility, and a shift in executive-legislative relations towards the UK government. This conclusion is not alleviated by the concessions enacted by Parliament (in lieu of the Parliament-run Brexit process).

But more battles lie ahead for Mrs May: if she reneges on her apparent assurances towards the Remain camp within her own party, she risks losing her parliamentary working majority (even once the Democratic Unionists are included, as the Europhile rebels may choose to leave the Conservative parliamentary party and sit as independents). Likewise, if she acquiesces to the demands for a firm customs union (let alone retention of Single Market membership), she may trigger a leadership challenge by the likes of Mr Rees-Mogg (whose chances, in the estimation of this author, are overrated by media outlets). Win or lose, such a challenge would severely damage Mrs May’s authority, forcing her early retirement. In either scenario, a general election later this year looks increasingly likely – valuable time that the UK will lose in negotiating an equitable Withdrawal Agreement.

Finally, even more ominously for the UK, merely 9 months are left for Britain to leave. There is even less time for all the issues to be dealt with – since the Withdrawal Agreement will need to be ratified. Unless the European Council (the assembly of the heads of state and government of the EU) formally extends the deadline unanimously – if even one Member State objects, the request to extend fails. Thus, two years after the national referendum which determined the wish of a plurality of the British people to leave the European Union, Britain finds itself at a precipice, with little incentive for the European Union to play nice. Ironically, the UK is now truly dependent on the goodwill of others.

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