In a new report published jointly by the Constitution Unit and the UCL European Institute, Alan Renwick examines what the process of Brexit is likely to look like over the coming weeks, months, and years. Here he summarises five key lessons.
The phoney war around Brexit is almost over. For months, two immediate questions have dominated discussions: How can Article 50 be triggered? And what sort of deal will ministers seek? The Supreme Court’s ruling on 24 January answered the first question. We know much more now about the second through Theresa May’s Lancaster House speech and last Thursday’s white paper. The Article 50 bill is being debate in parliament. By the end of March – if the government gets its way – we will be entering a new phase in the process.
The question is: What comes next? Can the government deliver on its wish list? Can parliament provide effective scrutiny? Will the courts intervene again? How is Brexit likely to play in the devolved nations? Is a second referendum at all likely?
In a new report, I offer answers to these and related questions. Here I summarise five key points.
1/ The UK government is very unlikely to get what it says it wants.
The government has set out highly ambitious goals. It wants not just a divorce agreement, but also a complex, deep, and bespoke deal on the UK’s future relationship with the European Union, encompassing a comprehensive free trade agreement, a novel form of customs association, and ongoing cooperation in areas including policing, security, and research. Furthermore, it wants all of this to be both negotiated and ratified within two years.
Whether such a deal will emerge is impossible to say; but achieving it within two years certainly looks very unlikely. First, EU leaders (so far at least) have said they will not negotiate on these terms. Rather, they initially want a divorce deal only; once that has been negotiated, they propose a transitional period that preserves many features of EU membership while detailed negotiations on future relations are conducted. Thus, the first round of the negotiations will be a discussion of what the negotiations are actually about.
Second, even if the UK government gets its way in this opening round, the negotiations thereafter will be immensely complex and difficult. They will range across most policy areas. Not only will the UK be negotiating with the EU: in addition, there will be intense negotiations among the twenty-seven remaining member states and between the European Council, European Commission, and European Parliament. Whitehall’s resources for all of this are very tight, and experienced negotiators with relevant expertise are thin on the ground.
Third, a deal such as the Prime Minister proposes will have to be agreed by the European Parliament and ratified by every member state. As the troubles faced in the Walloon parliament by the Canadian free trade agreement show, there is no guarantee that ratification will be smooth. Indeed, in some countries ratification could be subject to a citizen-initiated referendum, as occurred in the Netherlands last April for the EU–Ukraine Association Agreement.
If no deal has been done and ratified within two years, the UK government will have three main options: press for an extension to the negotiation window (which would require unanimous agreement of the member states); accept the EU’s proposed transition phase; or decide that the UK is leaving without any deal. Ardent Brexiteers dislike the first two options. But most observers think the hard and disorderly Brexit implied by the third entirely unpalatable. A government that pursued it could well be forced from office, triggering deep political turmoil.
2/ Parliament will continue to matter.
The UK parliament might seem to have only limited formal powers over the negotiations: the Commons can veto the deal once it has been struck, but that is two years off.
Nevertheless, there are three important sources of influence. First, parliamentarians can put pressure on ministers through questions, debates and select committee scrutiny. The government does not want to lose face. It has backed down already on revealing its broad negotiating plans. We can expect such influence to remain effective.
Second, the final parliamentary vote should not be thought unimportant. Yesterday’s concession from the government allowing a vote on the ‘final draft agreement’ rather than just on the agreement once struck makes little difference: either way, ministers say it will pit the deal on the table against leaving the EU with no deal. But whether that is really the choice available will depend on the political mood at the time. Given a strong desire, in the UK and across the EU, to avoid hard and disorderly Brexit, strenuous efforts to find an alternative would follow any parliamentary vote against the deal. The government might well collapse after such a vote. It will therefore do all it can to deliver a deal that parliament will accept. We also know from the Eurozone crisis the skill with which the EU can teeter on cliff edges without quite falling off.
Third, the shape of Brexit will also be determined, in important part, through legislation. The government promises a ‘Great Repeal Bill’, and its white paper foreshadows other measures, on matters such as immigration and customs. One of the battles to come will concern the degree to which this legislation empowers ministers to make changes without detailed parliamentary scrutiny.
3/ The courts will continue to play a role too, but this shouldn’t be exaggerated.
The role of the High Court and the Supreme Court in clarifying the mechanism through which Article 50 can be triggered is well known. Further court cases can be expected. One was filed in Dublin last month on whether notification under Article 50 can be revoked. Further down the line, there may be cases relating to potential rights breaches and whether the deal that is struck conforms to EU law.
Nevertheless, the role of the courts should not be exaggerated. First, we should remember that the courts will not take a view on Brexit itself: they will not attempt to second guess the will of the British people or subvert the referendum result. Rather, they will seek to uphold the rule of law, which is a fundamental underpinning of the democratic system.
Second, politics tends to trump the law. The court case on triggering Article 50 was never going to define the shape of Brexit as some suggested. As the Constitution Unit’s October newsletter argued, it was ‘something of a sideshow’: if parliament’s consent was judged necessary, it would be given. Those behind the Irish case on Article 50 revocation also exaggerate in suggesting that only revocability can empower parliament over Brexit. In fact, consensual revocation is possible even if unilateral revocation is not; so is extension of the negotiation window. A decision against revocability would be constraining, but politics could overcome that if there were sufficient will.
4/ The process of Brexit could have profound implications for the future of the union between England, Scotland, Wales, and Northern Ireland.
The Supreme Court said that the devolved legislatures have no justiciable right to be consulted on the triggering of Article 50. But those legislatures have good reason, both politically and constitutionally, to expect a hearing. The UK government says that the Article 50 bill does not engage the ‘Sewel convention’, according to which Westminster cannot legislate on devolved matters without the devolved legislatures’ consent. It will probably get away with that. But the Secretary of State for Scotland himself acknowledged in January that the Great Repeal Bill will trigger that convention, as may subsequent measures. Consent of the Scottish Parliament on these matters looks very unlikely. But for Westminster to act without such consent would violate not only the convention but also the spirit of the ‘vow’ that the main unionist party leaders made to the people of Scotland two days before the independence referendum in September 2014. This could have far-reaching consequences.
The situation in Northern Ireland is at least as delicate. Disagreements over Brexit contributed to the collapse of the Executive last month and will likely hinder the resumption of effective government after next months’ elections. The border issue is crucial. The disappearance of a tangible border between the North and the Republic has been among the greatest gains of the last two decades. Any return of border controls would undermine that. The UK government expresses a strong desire to find a solution, but shows no sign of having yet done so.
5/ Public opinion will remain crucial to determining the direction of events.
Public opinion, as expressed in the referendum last June, set Brexit going. And public opinion will remain central to shaping the general direction that Brexit takes. Public discourse often bemoans a perceived elite disregard for the views of ordinary people. But 498 out of 650 MPs voted for the principle of triggering Article 50 in the House of Commons on 1 February not because they wanted it (according to the BBC, 479 of the 650 supported Remain in the 2016 referendum, and few have changed their minds), but rather because they respect the referendum result. We might ask whether that respect is genuine or simply reflects a desire for re-election. But, either way, it has a big effect on MPs’ behaviour.
There is much talk of a possible second referendum. Legally that is possible. The political process leading to it is much less clear. Whether it will happen depends, above all else, on whether public opinion on Brexit remains solid or appears to have shifted. With or without a second referendum, it will be the public mood that determines what MPs are willing to push for and what government agrees to concede.
You can read Alan Renwick’s full report, The Process of Brexit: What Comes Next?, published jointly by the UCL European Institute and Constitution Unit, here.
About the author
Dr Alan Renwick is the Deputy Director of the Constitution Unit.