Brexit Dithering and a Labour Push for Revocation?


Brexit is back to its usual Groundhog Day feel, if anything more so than usual.

Dominic Raab was supposed to see Barnier this week with new deal terms approved by the Cabinet. Instead, Theresa May is running to the Continent, apparently to beg for more time for the EU to get its act together and still have an EU Council session in November. I’m going to dispense with linking to press reports for the most part, since a lot of this rumor of the day stuff proves to be unreliable. However, it appears the new target date for a November session would be November 25, as opposed to the earlier November 21. But among other things, that depends on May getting agreement from her Cabinet next Monday. Insiders are trying to manage down that expectation. And the Irish government is skeptical too. From Politico:

The U.K. and the EU appeared no closer to a Brexit withdrawal agreement Thursday, with leaders and diplomats alike voicing caution that a deal is not a foregone conclusion, despite predictions in some quarters that a text could be signed off on by the British Cabinet next week….

The reticent tone was echoed in public by Irish Foreign Minister Simon Coveney and European Agriculture Commissioner Phil Hogan. Speaking in Dublin at a business event, Coveney said “an imminent breakthrough is not necessarily to be taken for granted — not by a long shot,” and urged against the belief that signoff by Theresa May’s Cabinet, if it were forthcoming, represented a guarantee of final agreement.

Hogan, speaking to Irish broadcaster RTÉ, said that new proposals from the U.K. on the Irish border would be needed in the “next few days,” or else a mooted November Brexit summit at which EU27 leaders would sign off on the withdrawal agreement may have to wait.

“I would say, if I was a betting person, we would have a December Council to discuss the final outcome and hopefully we can do a deal,” Hogan said.

Nevertheless, Donald Tusk is now the one making cheery noises on behalf of the EU, saying the EU and the UK could have an agreement in a week. However, as predicted, fishing rights have become a source of friction. From the Telegraph:

Senior EU diplomats have warned that any plan to grant the UK a temporary customs union to solve the Irish backstop problem must come with cast-iron guarantees that EU boats will be free to fish in UK waters. The EU demands threaten to re-open a fierce row inside the Tory party over the potential size of the Brexit dividend for coastal and fishing communities. Fishermen warned Mrs May that she must not “squander” the chance to claw back valuable quotas for British fleets, while MPs representing fishing communities said extending the current arrangements would be “totally unacceptable”.

And the DUP is having fits over a proposal, leaked to The Times, which has May acknowledging that the EU is pushing for Northern Ireland to remain aligned with the EU to avoid a hard border. Even though May maintains she won’t agree to that solution, the DUP is up in arms for May dignifying it by her mere mention.

I wanted to revisit something I mentioned in Links yesterday because it bears watching. Labour’s Keir Starmer declared May’s no deal Brexit talk to be a bluff. The Express reported that Starmer was set to tell EU officials that Labour would vote down a Brexit deal if it lacked “a comprehensive vision for a future relationship.” Has he not figured out the UK not being clear on what it wants and then asking for combinations of things it can’t have is the main obstacle?

The same day, Tony Blair stated that he would do everything in his power to stop Brexit.

Now this may be the bluff of the week. But if Starmer is serious, this means at least a fair contingent of the Blairite Labour MPs, who might otherwise have been expected to break with Corbyn and support a deal, any deal, to avoid a crash-out, are instead planing to play chicken to force May to send in a notice asking to revoke Article 50.

First, there are procedural UK issues that are above my pay grade. Could May as PM on her own authority take this step without a Parliamentary vote? If she needed or wanted Parliamentary approval, it would seem a month is the absolute bare minimum time for the needed motion to move through both chambers, and that assumes the Ultras do not succeed in throwing legislative sand in the gears.

But even, despite the vanishingly small odds of getting the UK Brexit supertanker to turn around, getting Article 50 undone may not be a tidy as we’ve assumed. Admittedly the EU did tons of fudging when it came to rescuing banks, but this is a treaty matter, and the EU has to think hard about exactly what precedent it wants to set. The EU should be unified in wanting to let the UK back out, but consider the lawyering that has already gone into this issue. As our Clie pointed out:

First off, anyone who claims to provide a definitive opinion is fibbing. A50 is too badly drafted to ever allow legal certainty for the Member State withdrawing. It was designed to give the EU all the flexibility and the withdrawing Member State none. Probably sounded like a good idea at the time, but… events…

Anyhow, this http://www.europarl.europa.eu/RegData/etudes/IDAN/2018/596820/IPOL_IDA(2018)596820_EN.pdf is as close to stating the position as it is possible to get. I think this is the latest report (there have been several versions, which says a lot there)

The clincher is that withdrawal, as the triggering of A50 puts in motion, is irreversible. At least, that was the intention. However, this is currently the subject of a case before the CJEU to get an opinion as to whether or not the withdrawing Member State can simply change its mind. I doubt that will be what the will decide to CJEU hand down, but it is a possibility.

Discounting that, we’re left with what A50 says on the tin, which is that the best a vacillating Member State can get is an extension of the withdrawal period. This, A50 explicitly states, requires Council unanimity.

But (and with the EU there’s always a but) if anything the EU has been up to during the withdraw period is potentially unlawful, there’s always the possibility of a legal challenge. Here, as the EU Parliament report explores, it all gets very murky. Because it is not at all obvious that the CJEU has jurisdiction. Certainly, from what the U.K. has done already, it will on 29 March have withdrawn from the TFEU (the Treaty of Lisbon). So it’s sayonara to the CJEU as far as the U.K. is concerned. The International Court of Justice would be the presiding jurisprudence.

However… if as part of the withdrawal agreement the U.K. elected to have the CJEU as the superior court (I can’t see the Ultras going for this and it getting through the U.K. parliament, but let’s suppose for a minute) then it’s back to the CJEU again. Which would tend to favour what the Commission thought, rather than some narrow legal reading.

No simple answer, though and unfortunately all we can really do is speculate.

The reason for raising the issue about lack of clear answers is that leaves open the possibility of Ultras to cause big time trouble. Starmer and Co. should game things carefully before they play chicken with such high stakes.

Revoking Article 50

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