Date: Friday, 8 November 2019
Author: Pat Cox
The Brexit referendum was discretionary not mandatory. Its author, David Cameron, quit politics leaving his successors to deal with the consequences. He sought to address internal conservative party tensions but unleashed deep national divisions, revealing a kingdom disunited territorially, demographically and politically. Remainers sold economism. Leavers sold identity. Identity politics won. Economic performance will lose. Plebiscitary democracy pointed the direction but representative democracy has struggled to find the destination.
Theresa May initially opted for a hard Brexit having sheltered for months behind the mantra “Brexit means Brexit”. No cross party parliamentary committee was established to explore a broad consensus on what next. The notice to quit, Article 50, was lodged with Brussels on 29 March 2017. The clock was ticking. Ten weeks later in another discretionary self-imposed wound, having sought an electoral mandate for “strong and stable” government, the prime minister lost her slim conservative party majority in parliament. She returned to power hostage to her own hardliners and relying on ten DUP votes, adding a particular Irish twist to the UK’s European dilemma. It fell to this weakened prime minister, her divided cabinet, her divided party and a fractious Westminster to plot the state’s course.
Attempts to exercise a divide and rule bilateral British diplomatic strategy with other EU states fell on barren soil. Institutionally and politically from the outset the EU has shown remarkable consensus, consistency and coordination. This strength through unity started with its own mantra, “no notification no negotiations”. Through EU solidarity, an historic first, Ireland found itself on the stronger side of bilateral negotiations with the UK.
Citizens’ rights, the financial settlement and the Irish question were the three key negotiating strands. Future relations must await a second phase. Mrs May inched towards a sea-based border solution for Northern Ireland but was blown off course by a DUP intervention in early December 2017. A ‘backstop’ deal emerged whereby all of the UK would remain aligned to the EU through a customs union ‘unless and until’ an acceptable and viable alternative was found. The UK Withdrawal Bill provoked political chaos, in draft form, at a summer 2018 cabinet meeting in Chequers when Boris Johnson resigned and, in final form, in November prompting further resignations and charges of “betrayal”. Coarsened and highly charged discourse has reigned supreme. The Prime Minister survived both internal party and House of Commons votes of no confidence but lost three consecutive meaningful votes on her deal, the last on 29 March 2019, the long-anticipated Brexit date. Eight variations on the Brexit theme, including a second referendum, were rejected by indicative votes in the Commons. The EU deadline was extended to 31 October. The Prime Minister in frustration belatedly turned to a sceptical opposition who withheld support. Yielding to the hapless logic of her position Mrs May resigned on 7 June 2019. Brexit had claimed its second prime ministerial victim in succession. The UK was obliged to hold elections for the European Parliament. The six-week-old Brexit Party, led by Nigel Farage, won the largest share of votes and seats at 31% and 29 respectively.
End July, enter Boris Johnson, the Tory grass root’s choice and vote Leave leader, proclaiming his loyalty to the Union and resolved to safeguard his party against an invigorated Faragist flank. Downing Street shifted from staid civility to “I’m the dude”. Ramping up no deal preparations, shifting to a post-austerity “rocket boosters” spending message and contemplating a populist Brexit electoral pitch of “people versus parliament”, Mr Johnson declared the UK would quit the EU on October 31st “do or die”. Contacts with Angela Merkel, Emmanuel Macron and Donald Tusk yielded publicity without progress. In late August the Government sought and was granted a prorogation of Parliament for five weeks. The Speaker condemned this as a “constitutional outrage”. Mr Johnson tactically wanted to wield a no-deal threat in talks. Parliament baulked, rebelled and passed the Benn Act – if no ‘meaningful vote’ was passed on a deal after the October EU summit then seek another extension. 21 Tory rebels were expelled. On 24 September the Supreme Court delivered a hammer blow to the Government’s strategy deciding by 11 to zero to declare the prorogation of Parliament “unlawful and void”. On the following day an unrepentant Prime Minister said he disagreed with the decision, goaded the opposition and condemned the Benn Act as “surrender”. The Leader of the House called it a “constitutional coup”. Taking back control, like a thing of beauty, is in the eye of the beholder.
Post Conservative Party conference the pace quickened. No UK-wide membership of the EU customs union and replacing the backstop with a new Northern Ireland Protocol were the focus. Reconciling a hard Brexit with no hard border on the island of Ireland remained the central dilemma. 10 October marked a turning point when Leo Varadkar met Boris Johnson. The following day Michel Barnier got a green light to proceed with negotiations. Five days later on the morning of the European Council meeting, 17 October, a deal was agreed. It keeps Northern Ireland in the UK customs union but aligns it to the EU, creating an East-West sea border and leaving much of the intricate complexity to be resolved by a Joint (EU-UK) Committee. The backstop insurance policy transformed into a border free island to be sustained by a majority mandated Northern Irish democratic consent. With the alacrity with which they once adopted them, Tory Brexit hardliners now abandoned the DUP. Probably more exhausted that exhilarated Johnson’s deal won parliamentary approval, aided by Brexit Bolsheviks, some returning Tory rebels and Labour leavers. An attempt to railroad this profoundly important and generationally consequential 110-page Withdrawal Bill through parliament over several days was rejected. It was withdrawn. Its fate awaits the uncertain outcome of a general election, which was agreed once an EU extension until next year was assured and no deal was off the table in the interim.
A third consecutive conservative prime minister has rolled a discretionary voting dice. He has chosen an electoral delay over concluding an earlier deal gambling on closure that eluded his immediate predecessors. There will be 650 separate constituency elections with complex tactical voting possibilities. Radical change beckons. All Brexit outcomes are possible but some issues will not change.
The unwritten British constitution, which relies on conventions and practices, has been disfigured by the strain. Where true sovereignty lies is disputed as the UK asserts its right to ‘take back control’. Is it the royal prerogative of Her Majesty’s government or representative parliamentary democracy? Are the people sovereign or is it the highest court in the land? These sources of power and their limits are specified in written constitutions. With so many precedents undone by the Brexit debacle whither the UK constitution?
Placing party before country has dogged the process. Not leaving the EU has already cost billions in no deal preparations let alone the dynamic effects of business uncertainty and opportunities foregone. English nationalism is on the rise and the constituent parts of the UK are restless. Northern Ireland has a hybrid status with potential economic upsides, notwithstanding some greater customs complexity, but political downsides in terms of the on-going stalemate at Stormont and the ever-present latent threat of violence. Scotland, feeling slighted and ignored, is itching for another lawful independence referendum. The Union of four nations feels more fragile. Addressing this lingering constitutional legacy will be a political minefield.
Voting to leave the EU turned into an unintended national crisis shaking democracy to its foundations, tearing at the social fabric, damaging the economy and diminishing the international standing of the UK. Article 50 disengagement has been a politically exhausting process, still to find closure. It will be an important milestone if and when reached, but just that. Brexit will not go away it just moves on to a new phase. The future relationship must be negotiated. It is broader than just trade among close neighbours but unlike other EU trade negotiations this will be between convergent parties who may diverge rather than divergent parties who may converge. The extent, ease and timing of UK access for goods and services to the EU single market will be commensurate with the degree of regulatory alignment. “Zero tariffs, zero quotas and zero dumping” summarises the EU’s opening position. The extendable transition period may prove to be another cliffhanger as soon as June 2020.
Next time the EU27 national and some regional parliaments, in addition to the European Parliament and the House of Commons will have to approve the trade deal. The current declared focus on a free trade deal is in essence a hard Brexit option. This would be tough for Ireland. The EU has other issues – budgets, climate change, the economic slowdown, and the geopolitics of strained multilateralism, trade wars, security and defence – all pressing on its agenda. Psychologically Europeans are moving on, regretful but resigned to losing the UK as a member, open to but not expecting a change of mind and knowing that for both sides this is a lose-lose situation.