The UK is now in the worst possible Brexit predicament
Only a momentous act of political will can avert a no-deal exit from the EU
David Allen Green
Brexit secretary Stephen Barclay speaks after MPs voted down alternative Brexit options on March 27 ? Reuters
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David Allen Green 4 hours ago
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From the perspective of law and policy, the UK’s current predicament on Brexit is now the most serious it has been since the 2016 referendum. It is as if a mischievous demon has devised the worst possible scenario for Britain.
Law and policy provide the parameters for political action. Of course, politics can in turn shift those parameters: laws can be passed or repealed, and policies may be implemented or altered. There is a relationship that very clever people would call symbiotic. But they are not the same: in the shorter term, law and policy will usually shape and bind political action, and provide the available options as to what can actually be done and not done.
From the perspective of law and policy, the current Brexit predicament of the UK is grave for two main reasons.
First, the UK will be out of the EU by automatic operation of law on April 12 unless something exceptional happens. The UK has been here before — in the week before March 29. But then there was a meeting of the European Council in good time to agree any extension (which it did). And there was also (just) enough time for the domestic legislation to be changed.
This time, however, the European Council meeting is on the very eve of the scheduled departure. The UK will not ever have been this close to the cliff edge without the means of extension.
Second, the range of viable political options is now far narrower than before. Prime minister Theresa May’s withdrawal agreement is unlikely to be supported by the House of Commons in the event of a fourth “meaningful vote”. The failure of the first and second round of indicative votes on alternatives to Mrs May’s deal means that the UK still cannot provide a good and compelling reason for any extension to Article 50. Unless the UK government or parliament is able to fashion a case for extension in the next few days, there is a real risk that none will be granted. And as the EU27 now say they are ready for no deal, there is no reason to believe they will blink.
If there is no prospect of the deal being approved by parliament, and if there is no extension forthcoming, the UK will be left with the stark choice of revocation or a sudden departure with no deal a week on Friday. There is no reason to believe that Mrs May would revoke Article 50 as a matter of politics. So, if she remains prime minister, then it would have to be no deal.
But even if she or another prime minister was minded to revoke, there is the legal issue of whether revocation could be done in time. My view (which is a minority one among legal commentators it seems) is that revocation does not require fresh legislation: the power to revoke is implicit in the notification legislation or could be done by the royal prerogative. And the Supreme Court decision in the Gina Miller case only applies to decisions to remove EU law from domestic law and not to letting EU law stay in place.
Other lawyers say that a new statute would be needed. They may be right. But if they are correct, then primary legislation would need to be passed rapidly through both Houses of Parliament. This is difficult enough with non-contentious emergency legislation, where all sides and both houses co-operate. It would seem to be an impossible task with something as inherently controversial as cancelling Brexit.
The UK is therefore in as bad a Brexit situation as it can be: it is not prepared for no deal; the available deal is unacceptable; there is currently no positive case for an extension; neither government nor parliament has a way forward; and revocation is not a political option and would have legal difficulties.
UK parliament fails to back any alternative Brexit strategy
UK politicians (and, to an extent, EU ones) therefore have an immense challenge in the next 10 days, perhaps the most difficult of their political careers. The questions are momentous. How can the impending departure be avoided? What can get the deal over the line? What would warrant and justify an extension? How could a revocation be made in time?
Each of these ways to avert the looming disaster is hard. Some would say, fairly, that one or more of the options of deal, delay or revocation is now impossible. But these are the only available outcomes which the law and policy parameters of Brexit will allow in the time available.
The current Brexit predicament is still susceptible of resolution — just. But it would need speedy, concerted and sustainable political will and then political action. Perhaps this can and will be done, and one day hindsight will tell us that the resolution was inevitable all along.
But something big is going to have to happen quickly to shift the trajectory of the UK away from an imminent crash.
The writer is a contributing editor of the Financial Times and a City of London solicitor
https://www.ft.com/content/6eb3670c-552f-11e9-91f9-b6515a54c5b1?segmentid=acee4131-99c2-09d3-a635-873e61754ec6
