by Frank Schnittger
Wed Mar 8th, 2017 at 06:22:33 PM EST
For the second time in a few days, Theresa May's government has suffered a defeat in a House of Lords vote. Their Lordships are concerned not to give the Government a free hand to negotiate whatever deal it sees fit without having to submit it to Parliament for approval before Brexit finally happens. However as The Telegraph has noted:
At first glance, the amendment to the EU (Notification of Withdrawal) Bill in the House of Lords giving Parliament a "meaningful vote" on a Brexit deal may look innocuous. After all, Britain has voted to restore the primacy of its own Parliament, so why should that Parliament not decide on the Brexit deal? That is the argument that advocates will make for the amendment, which may well be endorsed in the upper house and conceivably by the House of Commons next week, since a number of Conservative MPs are said to be minded to support it there. Yet that argument is flawed and this amendment should not pass.
The flaws are both practical and principled. The practical flaw is found in the effect this amendment would have on Brexit negotiations. It is no secret that some EU leaders still believe that Britain can be persuaded to reverse its decision to leave; the EU, after all, has a history of trying to overturn democratic votes, even referendum decisions, a contempt for the electorate that partly explains why the integrationist project is failing. If those leaders believe that the British Parliament could reject any Brexit deal and instead continue our membership, they will have a strong incentive to offer the worst deal possible.
As usual, The Telegraph sees no irony in criticising the EU for a lack of democracy in the context of an article on a vote in the entirely unelected House of Lords. But there is a bigger problem with the House of Lords vote. A correspondent and European Tribune reader who wishes to remain anonymous writes (by email):
It is common (or perhaps just apocryphal) for letters to the editor to begin "Am I the only one who ...." so in this context - Am I the only one who thinks that the recent discussions in the Commons and the Lords, and the campaign by the LibDems about MPs having a "meaningful vote" on the outcome of A50 negotiations is at best, a complete waste of time, and, at worst, totally deluded.
Back in July, I queried what the Brexit negotiation process would entail and whether the UK hierarchy was deluded in the path it expected to take to free market access.
What has happened since has re-enforced my view that there is a complete mismatch between what May, Davis and Fox think is going to happen and what Barnier, Tusk et al are intending. Since the UK populous is exposed to the former rather than the latter, we are being set up to blame the EU for intransigence when the negotiations go nowhere that the UK expects.
The UK Press seems incapable of discussing this mismatch.
What has come to be called the "triggering of Article 50" requires a simple written statement that a member wishes to leave the EU. Nothing else. I doubt if any other statement in that letter matters legally. As you stated in a comment once that process happens the rest could be automatic - out to third country status two years later with no agreement, or sooner, with a "divorce" agreement.
So any vote by MPs is a vote to accept what has been negotiated or for a full hard exit. The option some Lords and Commons have discussed of remaining in by withdrawing A50, or by rejecting the agreement and negotiating further, is not legally supported within A50. Further negotiation is not likely to be a consideration for the EU Commission, Parliament or other 27 members after two years of expensive time wasting by the UK.
There is no provision within A50 for the request to be withdrawn. An EU advisory legal paper suggests it cannot. At best, it would be a decision for the ECJ. The [present] UK government is not going down that route!!
The latest time to save the UK economy is within the next two weeks but our MPs are not going to do that either.
MPs and Lords could be in for an unpleasant surprise.
Prepare for more "fake news" as the "Intransigent bureaucratic EU" gets blamed for the UK's increasingly desperate situation beginning in two weeks and declining rapidly over the next two years.
My response was as follows:
I agree with the points you make. There is no legal provision for withdrawing an A50 invocation if you don't like the outcome of the negotiation process. i.e. you don't have the legal "right" to withdraw a notification, and the EU doesn't have to accept your withdrawal attempt if you try.
That does not mean, however, that the EU and the UK could not agree to terminate the A50 process if all came to the view that it was all rather a bad idea after all. This could happen, say, if there was a change of Government in the UK and the incoming Government had campaigned against accepting the terms of departure as negotiated by the outgoing Government.
The problem here would be timing. Suppose the Tory government negotiated what was generally agreed to be a very bad agreement and lost a confidence vote in the House of Commons in consequence. Presumably this wouldn't happen until near the very end of the A50 negotiating process after the usual last minute brinkmanship.
There might be no time to hold a general election and form a new government before the two years had elapsed resulting in the UK being out one way or the other. Under those circumstances, and with a UK general election pending, I could see the European Council agreeing to (say) a 3 month extension to allow the political process to play out within the UK and in order to see what the new Government wanted to do. However I doubt the new Government would be allowed to begin the negotiation process all over again. They would simply be asked "are you in or out?" based on whatever agreement was negotiated by the previous government.
However we are then in "unanimous agreement" territory and it would be very easy for any one disgruntled EU member to end the whole process unilaterally at that stage by withholding their consent. Also, it is hard to see that scenario unfolding within the UK, as Theresa May has been very clear that the UK is out one way or the other and that no agreement is preferable to a bad agreement.
So even if Parliament were to reject whatever Brexit agreement is negotiated, it still seems that the most likely scenario would be that the UK will simply leave without any Brexit agreement.
That is where the doomsday scenario I have been elaborating comes in. The EU would be faced with a situation where a former member had rejected its best efforts to negotiate an amicable agreement, perhaps refused to pay any outstanding debts, and yet still expected to participate in the WTO and other agreements the EU had negotiated on its behalf.
If this were accompanied (as I would expect) by a further radical devaluation of Sterling, EU member states would be faced with a situation where their exports to the UK became more and more uncompetitive or uneconomic and UK exports into their markets had a huge competitive advantage. It would be only reasonable and rational for the EU to impose significant import tariffs on UK exports to preserve the competitive position of their own economies.
Thus if Sterling were to devalue by a total of c. 25% (including the current 10% devaluation), import tariffs of say 20% might be imposed on UK exports. [The EU could further justify those tariffs on the grounds that the income was needed to plug the gap in the EU budget left by UK withdrawal and failure to pay the outstanding 60 Billion withdrawal bill.]
It is easy to see how this could lead to a trade war with retaliatory increases on import tariffs by both sides, and it is also easy to see how the UK economy would suffer the greater damage.
Theresa May would undoubtedly seek the assistance of Trump and other world leaders to bolster her case, but what could they do in what they would see as an essentially internecine dispute within Europe? Trump might in any case have lost his Congressional majorities at that stage and be seen as a lame duck President.
Of course a lot also depends on what happens within the EU and how the elections in Holland, France and Germany play out. Whatever Theresa May might say, Brexiteers have been hoping that the EU will gradually collapse, and that they will be able to pick over the remains at their leisure for the juiciest bits most to their liking.
So to some extent my scenario of a tough EU negotiating stance depends on basically pro-EU governments being re-elected here. But what have Macron and Schultz got to lose from advocating a tough negotiating stance vis a vis the UK, even if only to shore up their own positions against increasingly strong nationalist forces at home? If the UK is to be allowed to act in what it considers to be its own best interests, why can't the EU take action to protect its national economies?
So I see the political dynamics of this playing out all wrong from a UK point of view, but as you say, there is hardly any hint of this in the UK media and in the Lords and Commons debates. Like you, I anticipate a furious response from the UK tabloid and "serious" media when it begins to dawn on them that the EU has no intention of giving them what they want. The EU and UK are living in parallel universes at the moment and some kind of collision between different political realities seems inevitable, even if we don't know what the precise outcome will be.
We live in interesting times.