When I started writing this on 05/02/2018 the idea of a hard Brexit, an exit with no withdrawal agreement seemed possible but remote. In the light of the UK’s insistence this week that the UK will leave both the Single Market and the Customs Union and Michael Barnier’s insistence today (09/02/2018) that an open UK/Irish border must be written into the withdrawal agreement then the odds of it happening have dropped. The UK/Irish border can’t be open if the UK is not in the Customs Union and the Single Market and the DUP, whom the Tories depend on to survive in the Commons, will never allow an internal trade border in the Irish Sea. However there is a solution. The UK can solve the problem of a Brexit withdrawal agreement which is impossible under their Brexit plan by the simple trick of not having a withdrawal agreement. In which case there will be a hard Brexit where the UK leaves abruptly with no transition and no trade deal on the 29th of March 2019.
If the UK leaves with no withdrawal agreement then there will be no transition period or framework for future trade deals and in fact it may lead to no vote in the House of Commons on a withdrawal deal because there will be no deal to vote on.
The withdrawal vote scenario I’ve written about below may not come to pass. But assuming there will be an agreement here goes.
When politicians talk about voting in Parliament on the final Brexit deal what is that they will vote on? From the press the impression given is that the parliamentary vote will be on the details of the UK’s new trade deal with the EU after Brexit but in fact they will be voting on something very different when it comes to a vote in Parliament.
In the Brexit Bill it says this:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union.”
That key phrase is “final terms of withdrawal” in the last sentence. It’s not a trade deal which will be voted on in Parliament, it’s how the UK exits the EU under Article 50 of the Lisbon Treaty. Under Article 50 the EU and the UK sign up to a negotiated exit from the EU, dotting the i’s and crossing the t’s, taking into account items such as the settlement of budget accounts, withdrawal from EU institutions, rights of EU citizens in the UK (and vice versa) and the transition arrangements to smooth out the UK leaving the EU. It also provides in Article 50 that all the negotiated items of withdrawal will take into account the framework for the UK’s future relationship with the EU. However a framework is not a trade deal or anything like it and it can be likened to an agreed agenda. It’s the agenda of trade areas where the UK and EU are willing to negotiate once the UK has left the EU and where the UK is treated as a third party outside the EU and almost certainly outside the Single Market and the Customs Union.
So the UK Parliament will be voting on one package which contains three things, the withdrawal agreement, the transitional arrangements and the agenda for future negotiations once Brexit has been completed, aka the framework.
This ensures that it will be a Hobson’s Choice vote. To vote Yes legitimises the Government’s Brexit vision of a UK outside the Single Market and Customs Union but to vote No throws out not only the agenda for a future trade deal but also the withdrawal agreement and the transitional arrangements which means a very hard exit indeed unless the EU can be persuaded to extend Article 50 and the UK Government can be persuaded to change their Brexit stance in new negotiations. Just because the UK doesn’t accept the withdrawal deal doesn’t stop the Article 50 clock.
That’s the way the Government has set up the vote as David Jones, Minister of State for the Department for Exiting the European Union said in the House of Commons on 7th of February 2017.
“I think that I have already answered that extremely clearly. There will be a meaningful vote. The vote will be either to accept the deal that the Government will have achieved—I repeat that the process of negotiation will not be without frequent reports to the House—or for there to be no deal. Frankly, that is the choice that the House will have to make. That will be the most meaningful vote that one could imagine.”
So can’t the UK go back and re-negotiate if it rejects the withdrawal arrangements or even stop Brexit if by some chance the agreement gets rejected? Things get tricky here. First of all there’s no time left to renegotiate under the Article 50 time limit. The final withdrawal arrangements are planned to be completed by October 2018 giving time for the European Parliament and the European council to consider and approve them before March 2019 when the two years allowed under Article 50 run out. The whole point of the time-limit on Article 50 was to stop endless negotiations with their accompanying disruptions and uncertainty. Article 50 can be extended but it would need the unanimous agreement of all 27 EU member states to do it.
Rejecting the final withdrawal agreement would need the EU to be willing to extend the Article 50 time-limit and renegotiate but that would be pointless unless the anti-Single Market and anti-Customs Union UK Government could be persuaded to change their negotiating stance or simply to give up on Brexit. However there is no guarantee the Conservative Government will do either or if stopping Brexit can be done unilaterally.
The proposed solution coming from groups like the one lead by Labour MP Chuka Umunna is to bypass the vote in the UK Parliament and hold another EU referendum where the UK electorate vote on whether the UK Brexits on the negotiated withdrawal, transition and trade framework, (again, remember the framework is just an agenda for negotiation), or just forgets it all and stays in the EU.
A very simple, clean idea and potentially very bad for Scotland.
Now coming from someone who voted remain and believes that Scotland is better off in the EU that sounds very odd, however there are some very good reasons to say it is a bad idea.
The chance of a second EU referendum happening is very low as it would need enough Labour and Tory rebels to win a vote in Westminster and both Tory and Labour are Brexit parties. However, even if just the idea got traction and especially if it got SNP backing, then the idea that you hold a first referendum on the principle of a proposal and then a second referendum on the detail would become mainstream whether it happens or not.
This isn’t the first time the idea of a first referendum on the principle and then a second referendum on the detail has been proposed. When the Scottish independence referendum was held in Scotland the idea of two referendums was floated in 2011 by Professor Vernon Bogdanor,
“Therefore, in my opinion, a referendum giving the Scottish government authority to start negotiations needs to be complemented by a referendum at the end of the negotiations to confirm that Scots want independence on the terms achieved.”
and by Michael Moore the Scottish Secretary,
“If we have an advisory referendum set up by the Scottish government, I think it is a strong likelihood, and it is certainly my personal view, that you would need a second referendum on the formalities of agreeing what has been sorted out between the governments.”
The idea that any Scottish independence referendum should be followed by a referendum on the settlement between Scotland and the rUK would be very dangerous to the independence cause and if the SNP support a second EU referendum very difficult for them to reject. A two referendum scenario would require the unionists to win only once but the nationalists would have to win twice to achieve victory. If Yes won the first referendum then the pressure on the rUK side of the negotiating team to create the worst possible separation agreement would be immense in order to ensure that No would win the second referendum on the deal.
Independence with full membership of the EU is Scotland’s best option and promoting a second EU referendum makes that much more difficult to achieve. Even if there were calls for one there’s no guarantee that a second EU referendum would happen or that given the current polling of the Tory party that the remainers would win it and even the proposal would certainly fuel the demands for a two referendum decision on Scottish independence. If Parliament feels that staying in the EU is the best option then they should call a snap General Election and the parties should fight it out on platforms of Leave or Remain.
Brexit has given impetus to a second independence referendum much sooner than many people thought possible but how will it affect the way people vote? To be brutally honest it won’t, not until the effects of Brexit really start to hit after March 2019. For most of the No vote in 2014 nothing has really changed, it’s Brexit on the telly, pound up and down, the UK and the rest of the EU facing off as usual in the press, squabbles in the Government, almost the usual mundane, background noise of politics in the UK.
At the moment it’s a phony war where the UK is still in the EU with all the trade and free movement perks that brings and although the political geeks like me talk and speculate about the future effects of Brexit they haven’t happened yet. There are forerunners, lack of migrant agricultural workers, corporations planning moves to inside the EU, corporations holding back on investment, universities finding that nobody in the rest of the EU wants them as research partners as the deadline to Brexit approaches but it’s just smoke in the wind for most of the population. The problems of travel, having to get and pay for visas to travel to Europe, customs duties on goods, perishable export goods piling up at jam-packed ports, companies leaving, price increases, job losses, no CAP payments for agriculture and import quotas on seafood into the EU haven’t hit yet because despite all the Brexit talk we’re still inside the EU.
Brexit will have a big effect on the next Scottish independence referendum but not until Brexit happens and its effects become real. (Effects which will happen very quickly if there is no withdrawal agreement and no transition.) Once it becomes apparent what’s been lost with Brexit then for the No voters of 2014 who believe in EU membership independence for Scotland becomes the only route back into the EU. There is a big danger that the second independence referendum becomes in effect a second EU referendum in Scotland when it must be much larger in scope than that, looking at all the possibilities in social, industrial and cultural change that independence will bring. However the Better Together fearmongering about loss of EU membership and being isolated will not be possible this time and the choice for Scotland will be to stay as a region in single isolated state or to become an independent state in the world’s biggest trading bloc. In 2014 the EU feared the breakup of a member state and kept out of it, in a second independence referendum they will be looking approvingly at regaining a chunk of what they’ve lost. Brexit has been a blow to the confidence of the EU but regaining an independent Scotland would be for them a recovery of both territory and pride. They will be very encouraging about membership.