It is important to consider that the Brexit mess to which we find ourselves deeply entrenched has pushed the countries constitutional mechanisms to their absolute bounds with the controversial proroguing of parliament providing the backbone of Johnson’s plan to exit the European Union by the 31st October 2019. But how did we get here? It is my submission that this has occurred as a result of May’s poor performance in office.
After assuring the public on numerous occasions that she would not call a snap general election, May’s decision to do so in 2017 proved to be a grave political mistake. There was a belief that the Conservative Party could bolster their mandate inherited from David Cameron’s reign which could increase their negotiating position with the EU. On the 8th June 2017 the Conservative Party lost its majority in parliament and May entered into a Confidence and Supply Agreement with the Democratic Unionist Party. History would ultimately prove that she would never recover as her authority diminished daily. Perhaps the biggest mistake of all was triggering Article 50 without a proper strategy of approaching a complex set of negotiations and is perhaps why they are still failing to reach an agreement.
So ill prepared was Theresa May that Sir Ivan Rogers, former UK diplomat, resigned as the UK’s Permanent Representative to the UK just weeks before May had even triggered Article 50. This undoubtedly brought a position of great weakness to the UK’s negotiating position, giving more leverage to the EU who already had the support of 27 national economies. Furthermore, May made the decision of triggering the two-year Brexit countdown without serious provisions for the possibility of a no-deal Brexit. Instead, the threat of a no deal Brexit was not convincing enough for EU leaders who believed that May did not have enough time to prepare for the consequences of a no deal outcome.
Brexit may prove to have caused some of the most divisive politics of a generation as politicians grappled with which direction to take Brexit. Whereas some MPs wanted to pursue a soft exit where the UK would still remain very close to EU markets such as Norway and Switzerland, more Brexit-backing MPs insisted on a hard Brexit which would see the UK severing itself from EU institutions and markets. The notorious slogan “Brexit means Brexit” reflected May’s support of her more hard-line pro-leave MPs where the UK would leave the single market, customs union and ECJ. This marginalised those who wanted to remain or have a soft Brexit and added fuel to the resistance that sought to derail May’s vision of Brexit.
Instead of delivering a Brexit that reflected the 52/48 referendum result, May took Brexit in a direction of difficult negotiations, ultimately boxed in by her own red lines. The Withdrawal Agreement that May had reached with the EU was rejected three times by MPs where the first was the biggest ever defeat for a UK government. One particular sticking point in the Withdrawal Agreement was the contentious “backstop” because it would potentially lead to border checks between Northern Ireland and the rest of Great Britain, also keeping the UK in a customs union with the EU without a fixed exit date.
In spite of the many flaws with the Withdrawal Agreement, there was speculation that this deal could have been agreed upon by parliament had May sold them on the idea better. Instead, there was a refusal to compromise as Brexit became a Conservative Party project instead of the cross-party policy effort. Failure to recognise that she faced a marginal working majority and increasing rebellion from her own backbenches, May needed support of Labour votes if she wanted to deliver a successful Brexit. Once cross-party talks did eventually occur, divisions had been further entrenched and May’s “compromise” did not appear to offer Labour any significant concessions either.
By the time May had made her final offer of a possibility of a second referendum, her premiership already had one foot in the grave. Despite over two years since evoking the path towards Brexit, there has been limited progress as a result of the mismanagement of office over May’s tenure. Not only has her failure paved way for the more hard-line Brexiteers, who are content with a no deal Brexit, to rise up the ranks of the Conservative party in the biggest Cabinet reshuffle since the early 1960s, but the country is still as divided as ever. Although May has been the foremost antagonist in the Brexit mess we face today, new Conservative leader and Prime Minister Boris Johnson has certainly had his part to play.
After being particularly critical, Johnson later conceded that he would support May’s Withdrawal Agreement as Britain ran the risk of being forced to accept an even worse version of Brexit or losing Brexit altogether. He tweeted that a bad deal at this stage gave the government a chance to improve in the next stage of negotiations. This would be the basis of Johnson’s revised strategy of negotiations with the EU. Officially Plan A is to renegotiate the Brexit deal and come out of the EU on the 31st October with an agreement that dealt with the sticking points including the Northern Ireland Backstop. Plan B is to leave the EU with no deal by obtaining a “standstill” arrangement from the 1st November onwards to avoid crippling new tariffs.
Finally, Plan C is to leave the EU with no deal and no standstill arrangement. The EU have repeatedly stated that the Withdrawal Agreement is not open for renegotiations which includes the £39 billion divorce bill, Irish Backstop and EU citizens rights. However, Brussels have later conceded that they are open to amending the “political declaration” which outlines the terms of the future relationship with the UK and EU. In spite of this, it is difficult to see where that compromise might be since Johnson has already been warned that the backstop is indispensable, casting doubt over the practicality of Plan A.
The viability of Plan B is equally as questionable. Johnson has claimed that he can cite Article 24 of the General Agreement on Tariffs and Trade (GATT 24) to prevent the imposition of new tariffs from the EU – a “managed no-deal”. GATT 24 indicates that a plan and schedule that must already be in place to form a free trade area or customs union “within a reasonable length of time”. This therefore does not include the outcome of a no deal Brexit. The plan fails to take into consideration that the UK and EU need to come to a mutual agreement which is unlikely after failing to agree to the original Brexit terms that had taken two years to negotiate.
Recent developments have caused further headache for the Prime Minister’s Plan C as both Houses of Parliament have now passed a law (the Benn bill) that is designed to stop a no-deal Brexit on the 31st October. The law requires Johnson to extend the exit deadline to the end of January 2020 unless parliament has agreed to a deal with the EU by the 19th October. This can be seen as a countermeasure against Johnson’s prorogation of parliament for 5 weeks ahead of a Queen’s Speech in mid-October which was dubbed as a move to thwart plans to avoid no-deal Brexit or an extension.
The legality of prorogation has been deliberated in the courts, where it has been ruled by the Supreme Court that Johnson is behaving both unconstitutionally and illegally. The constitutional reality is that a referendum can only be consultative, with parliament taking it upon itself to honour the outcome. No one told the electorate what sort of Brexit was on the table as it would be for parliament to decide. On a number of occasions parliament have rejected notions of no deal Brexit and Johnson’s prorogation is a dismissal of the democratic opposition to no deal. Although prorogation occurs every year at the end of each parliamentary session, this time the decision was clearly politically motivated.
Some fear that Johnson is proroguing parliament in order to force a no deal Brexit through an unwilling parliament and pre-empt opposition MPs efforts to find a legislative means to prevent a no deal. Crucially, it also prevents them from voting to cancel the conference recess period which was rumoured to be in the works; MPs cannot vote to cancel prorogation. Johnson’s government are firmly opposed to the Benn bill, believing that it limits negotiations with the EU where the Prime Minister went so far as to suggest that he would rather be dead in a ditch than to request for an extension.
Despite all the optimism generated by Johnson’s premiership in getting Brexit done, he has not been any more successful than May’s time in office. Johnson lost his first three votes in the Commons which included requesting and failing to gain MPs to support his move for a general election. This needed 2/3 of the House of Commons that is required under the Fixed Term Parliament Act 2011. Furthermore, Conservative MPs that voted against the government to pass the Benn bill had the whip removed from them, essentially kicking them out of the Conservative party. Prior to this they already did not have a majority in the House of Commons and now are significantly short even with the support of the DUP, weakening Johnson’s ability to obtain majority decisions in his favour.
Should Johnson wish to succeed in securing a Brexit that is both right for the country and has cross-party support, it is vital that he does not fall into the trap that May did of forcing a form of Brexit through parliament that is deeply unpopular. Instead of being concerned with derailing anti no-deal Brexit attempts through anti-constitutional and illegal means, the government should focus on resuming negotiations with the EU and concede that a no deal Brexit is not in the interests of the country. Forcing through no deal is nothing more than a political move that seeks to cover Johnson’s ill-made promise to get Brexit done by the 31st October regardless of the consequences. The government should firmly put the national interest above its own and focus on achieving a workable solution to Brexit even if this should surpass the October deadline.