10 Jul 2019

Second Thoughts: What might a successful attempt to enact a Withdrawal Agreement look like?

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The televised debate held last night between Jeremy Hunt and Boris Johnson was probably the last chance for the former to stop the latter from cantering to victory in this leadership election. There was no obvious indication that such a shift in momentum might now occur.

The clear majority of the ballot papers which are destined to be cast will be returned by this weekend. The contest will see one more televised encounter of a different form and a few additional hustings, but it is all but over. It will last the better part of another two weeks, more for reasons of form than substance. Theresa May is condemned to be a Zombie UK Prime Minister until 24 July. After that, it will be a new era.

One of the reasons why Mr Hunt has found it so hard thus far to land decisive blows on Mr Johnson is that their formal positions on the issue that has dominated all others – Brexit – are too similar. The ex-Foreign Secretary insists that the UK will leave the EU on 31 October with or without a deal. His successor as Foreign Secretary accepts this formula but sounds more pained at a no-deal prospect. If the Conservative Party membership sense they face a choice between an upbeat Brexiteer (who led the Leave forces in 2016) and a more downbeat one (who backed the Remain camp three years ago), then it is hardly surprising and not especially illogical that they favour a Tigger over an Eeyore.

Added to this, Mr Johnson’s pitch as to why he might emerge with a better Withdrawal Agreement than Mrs May is that he would approach the EU question in a much different spirit, brimming with confidence and shorn of officials who clearly regard the entire exercise as one of damage limitation. Mr Hunt’s case for himself is that he was once an effective businessman and therefore would be a far better negotiator than the departing Prime Minister. This is not the most compelling of assertions.

The really important matter here is whether it is possible to secure a different version of the whole Withdrawal Agreement package, whether a majority in the House of Commons could be found for it, and on what timetable such a set of events might happen. That will dominate politics this autumn.

Is it possible to create a different version of the Withdrawal Agreement?

No and yes. No in the sense that the essence of the Withdrawal Agreement is not up for additional negotiations. The European Union have been absolutely consistent in that regard, and even if Mr Johnson were to win 99% of the vote in the leadership elections, this would cut no mustard for him. The architecture in the present agreement surrounding the financial settlement, the mutual rights of EU-27 and UK citizens, and the vexed matter of the Irish border, is fixed. The Johnson team knows it.

That does not mean that there is no room for repackaging the Withdrawal Agreement in a manner that is not merely shamelessly cosmetic. There are three means of doing this. The first is what would in private equity and venture capital terms be considered a side letter between London and Dublin as to how they intended to deal with the Irish border question in the period between the UK legally leaving the EU and the end of the transition period (now all but certain to be 31 December 2021). Such an accord would allow both sides to express their determination that the backstop would not be triggered, set out how technological solutions might be introduced to avoid a ‘hard’ border, and establish some new institutions to realise these shared ends. Such a body or bodies would doubtless include representatives from Belfast and the devolved Assembly as well as from London and Dublin.

The second change would be in the political declaration that is stapled to the Withdrawal Agreement but has no legal status of itself. The version which Mrs May signed up to keeps just about every kind of future relationship between the UK and the EU-27 in play. It could lead either to a ‘Switzada’ or to a ‘Canland’ settlement. A new Conservative Prime Minister and Government could make it plain that they were only interested in the Canland concept. The Political Declaration would be rewritten to state that this is understood by both sides and will be achieved by the closing date of a transition.

Is there a potential majority for a recast Withdrawal Agreement in the House of Commons?

Yes. Indeed, as will be outlined, the potential pool of support is higher today than at any time in the parliamentary process. There are three crucial constituencies, one of which is a relative novelty. The first and most obvious is the Democratic Unionist Party, whose 10 votes carry far more weight than their numerical value alone. The second is the contingent of 26 ultra-Brexit Conservative MPs who refused to back Mrs May on the Withdrawal Agreement on every occasion they voted. Every single one of these individuals is publicly committed to Mr Johnson in the leadership battle. The third is a set of at least 26 Labour MPs from mostly strongly pro-Leave seats, most of whom up until now have nonetheless refused the chance to support the Withdrawal Agreement in Parliament.

The most important development in Brexit in the past six weeks has been, paradoxically, one that has nothing directly to do with the Conservative Party. It came in the form of a letter to the Labour Party leadership from 26 backbench MPs, stating not only their hostility to a second referendum, but also the necessity of the UK leaving the EU with a deal by 31 October. This is a really significant shift in stance. Of those 26 Labour MPs, only six have been willing to back a Withdrawal Agreement in any of the various divisions in the House of Commons (along with a small number of individuals elected as Labour MPs in 2017 but who have since become various forms of Independent Labour).

The last attempt to enact a Withdrawal Agreement (shorn of the Political Declaration) came on 29 March and it fell short by 58 votes. To pass a newly reminted version thus requires 30 votes to move sides. Between them, the DUP (if attracted by a London-Dublin side letter), the 26 pro-Brexit Conservative MPs who have refused to play ball so far (but who may do so under a different PM and with a much sharper Political Declaration), and the 20 Labour MPs from parts of the country where The Brexit Party did especially well in the European Parliament elections, are easily enough people.

The decision of the Labour NEC yesterday to back a second referendum with the (preferred) option of remaining in the EU all but forces those Labour MPs who disagree with that decision to align themselves with the Government in the event that an alternative Withdrawal Agreement exists.

What timetable could this be achieved on?

This is the hard part. The House of Commons enters its summer recess the day after Mrs May stands down on 24 July. It will not return until 3 September. It is then in session for seven sitting days before it shuts up shop again for the party conference season, not to return until 8 October with only 18 sitting days left before the 31 October deadline. Furthermore, any Withdrawal Agreement Bill has to be approved by the House of Lords (a hot-bed of die-hard Remain supporters who will want to seek to attach a second referendum condition to it) and also by the European Parliament, whose attitude towards it is hard to anticipate with certainty (although by that stage they might well be so desperate to be shot of Nigel Farage and Ann Widdecombe that they move with unusual speed).

It is not impossible to imagine completing the political racecourse set out above by 31 October. It would involve the House of Commons (and Lords) sitting on Fridays and even Saturdays to do it. It is, though, a very, very tough timetable. A more plausible scenario would be that the Bill is enacted by the House of Commons by 31 October, but that a further modest extension (perhaps to 31 December) was needed for all the various stages of satisfying Article 50 of the Treaty of Lisbon to be met. This would need to be presented as a political victory in the spirit of the 31 October ‘do or die’ deadline. Some poor soul in Team Boris (but not the man himself) is probably plotting this today.

Tim Hames
Director General, BVCA


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