The Brexit Deal: The Final Steps to Its Approval
Ian Cooper (DCU Brexit Institute)
This morning, Donald Tusk announced that the EU and the UK have reached an agreement on a 26-page Political Declaration on the framework for a future EU-UK relationship. Together with the 585-page draft Withdrawal Agreement, this is the long-awaited Brexit Deal. It is expected that Theresa May and the other EU leaders will sign off on this deal at a special summit this coming Sunday (November 25). So what will it take for this deal to finally be approved?
The fate of the Brexit Deal is uncertain, and it is inextricably tied to the political fate of Theresa May, whose position is precarious. In order for the Brexit Deal to pass, Theresa May must obtain or maintain the support of several groups of people. From smallest to largest, these are the Cabinet, the Parliamentary Party, the Governing Majority, the Parliament, the United Kingdom and the European Union.
The cabinet must formally approve government policy – including the Brexit Deal – and individual ministers must publicly support it or resign. On November 14, Theresa May held a five-hour meeting of her full cabinet, which gave its “collective” (i.e. not unanimous) approval of the Brexit Deal. The next day, two members of the cabinet resigned, along with several junior ministers, but there was not a mass exodus. However, it was reported that five Eurosceptic ministers were staying in order to try to get last-minute changes to the deal. Given that these changes are unlikely to be obtained, further cabinet rebellion is still possible. Even so, for the time being the cabinet is supporting the Brexit Deal.
Theresa May must maintain the confidence of her parliamentary party, i.e. the 315 Conservative MPs in the current House of Commons. This group is currently riven between Remainers and soft Brexiters on one hand and hard Brexiters on the other. Any outright rebellion against her leadership is most likely to come from the pro-Brexit side, who despise the Brexit Deal because they see it as delivering too soft a Brexit. Under Conservative party rules, the leader could at any time be subjected to a confidence vote, if 15% of the parliamentary party (48 MPs) submit letters of no-confidence to the Chair of the 1922 Committee, Graham Brady.
Last week, it seemed like a challenge was imminent when Jacob Rees-Mogg, chair of the pro-Brexit European Research Group (ERG), submitted his letter and encouraged his colleagues to do the same. However, thus far the mooted challenge has failed to materialize. If 48 letters are received, this will trigger a vote by secret ballot among the 315 Tory MPs; if a majority (158 or more) support Mrs. May, she remains in office and is immune from another such challenge for a year. If she were to lose, the party must choose a new leader – a complicated and time-consuming process during which it is likely that she would remain prime minister on an interim basis. For these reasons, it is uncertain whether a change in leader could be brought about quickly enough to prompt a change in policy.
The government must have a working majority in parliament to reliably vote for key measures – e.g. budgetary measures – to keep it in power. Currently, this consists of the 315 Conservative MPs plus the 10 MPs of the Democratic Unionist Party (DUP) from Northern Ireland. After Theresa May lost her majority in the 2017 election, she entered into a Confidence and Supply Agreement with the DUP, where, in exchange for one billion pounds of additional funding for Northern Ireland, the DUP pledged its support on critical parliamentary votes: “The DUP agrees to support the government on all motions of confidence; and on the Queen’s Speech; the Budget; finance bills; money bills, supply and appropriation legislation and Estimates.” In addition, the agreement required the DUP to support Brexit-related legislation: “the DUP also agrees to support the government on legislation pertaining to the United Kingdom’s exit from the European Union.”
The DUP has indicated a very strong dislike for the Brexit Deal, although it has not yet stated definitively that it will not vote for it. However, this week the DUP withheld its votes from the government’s finance legislation, forcing the government to make concessions to the opposition in order to get it through. This was a warning to the government not to take DUP votes for granted in relation to Brexit. This is despite the fact that the Brexit Deal is quite favorable to Northern Ireland, in that it contains a UK-wide customs backstop (rather than a Northern-Ireland-specific one, which the EU had originally demanded), which would prevent customs checks either on the Irish border or in the Irish Sea. In fact, the Brexit Deal could be particularly advantageous to Northern Ireland in giving it full access to markets both in the EU and the UK. However, the DUP is set against it because it could require regulatory checks in the Irish Sea, implying a “border” between Northern Ireland and Great Britain.
The House of Commons must formally approve the Brexit Deal in the so-called “meaningful vote.” This is probably the most difficult hurdle that the deal will face. (Let us set aside the House of Lords, which can propose amendments but cannot veto the deal.) It has become something of a Westminster parlour game to try to figure out how to pass the legislation, given the difficult parliamentary arithmetic. There are 650 seats in the House of Commons. It you take away the seven absent Sinn Fein MPs and the Speaker (who does not vote), 322 MPs are needed for a majority. Theresa May has just enough votes with her unruly governing coalition – if she can keep them all on board, which seems increasingly unlikely. If not, she must pull votes from other parties. The Labour Party has pledged to vote against the deal (although a few pro-Brexit rebels may support it) in the hopes of triggering a new election. The other minority parties – the Scottish National Party, Liberal Democrats and Plaid Cymru (Welsh nationalists) – have signalled they are likely to vote against it, in hopes of securing a new referendum (a “Peoples Vote”).
It appears now that May is set on presenting parliament with the stark choice of accepting her deal or facing the chaos of No Deal. If the deal fails to pass, the government may try a second time. What then happens if the deal fails to pass? If No Deal seems imminent, then in late January the parliament will get one more chance to have a say on Brexit, where it might be able to give further instructions to the government.
In the June 2016 referendum, 51.9% of the UK electorate voted to leave the EU. This is the “will of the people,” a mandate which the Prime Minister feels duty-bound to carry out. (Of course, only two of the component “peoples” of the UK, England and Wales, voted to Leave, whereas the other two, Scotland and Northern Ireland, voted to Remain.)
The Brexit Deal honours this mandate according to her interpretation of the voters’ intentions. Above all, it should allow the UK to formally leave the Single Market, and thus she can claim to have put an end to the free movement of persons between the EU and the UK.
If parliament rejects the deal, there are only two ways to return the question to “the people” – an election, or a new referendum. The Labour party favours the first, but under the Fixed-Term Parliaments Act of 2011, even the failure of the Brexit bill would not trigger an election unless two-thirds of the House of Commons voted for it. The Conservatives would have to vote along with Labour for an election, which they might be loath to do. In such dire circumstances, it is possible that a majority might support holding a new referendum. However, this would raise the question of timing: it is thought that to hold a second referendum properly in the UK would take a minimum of 24 weeks from planning to execution. This means that the vote would take place after Brexit day, unless the other EU member states agreed unanimously to extend Article 50.
Finally, of course, the Brexit deal must be approved not only by the UK but also the EU. National leaders are expected to give their initial approval at the European Council summit on Sunday. The EU has maintained a remarkably united front in its negotiating posture with the UK, leaving the day-to-day negotiations to the chief negotiator, Michel Barnier. Barnier has skillfully maintained the support of the European Council and the Brexit Steering Group in the European Parliament by keeping them apprised of the state of the negotiations. Even so, last-minute objections could still derail the agreement on the EU side, such as Spain’s concerns about Gibraltar or France’s concerns about fishing rights.
Assuming these are resolved, the final steps to the formal approval of the Brexit Deal are set out in Article 50 of the Treaty on European Union. It must first be approved by the European Parliament, which will likely wait until after the House of Commons has passed its “meaningful vote” on the Brexit Deal before formally beginning the ratification process. It will first be considered by the Committee on Constitutional Affairs (AFCO), with input from other committees, which will debate the agreement and adopt a report, including the resolution which must be approved by a simple majority in the plenary in the ‘consent procedure.’ One estimate is that this internal process in the EP could take 36 working days. If the EP began its consideration of the Brexit Deal on January 24, this would leave just enough time for the parliament to give its consent during at its voting session of 11-14 March, the last plenary before the end of the Article 50 period. After this the European Council could sign off on the final deal at its scheduled summit on March 21-22, one week before the Brexit deadline. Formally, the deal must be approved not by the European Council but the Council, not by a unanimous vote but by “super-qualified majority”: it must be approved by 20 of the 27 member states (excluding the UK) representing 65% of the population of the EU-27. This schedule could be upended by events, but it is also possible to hold extraordinary meetings of the EP committees and plenary and the European Council.
Of course, all of this is highly contingent. But if the Brexit Deal successfully surmounts all these hurdles, the UK will leave the EU on schedule in an orderly fashion on 29 March 2019. After that the real work will begin, of negotiating the new EU-UK relationship to be put into place after the transition.
Ian Cooper is a Research Fellow at the DCU Brexit Institute. He has previously held positions at the European University Institute, the University of Cambridge, and the University of Oslo.