Brexit: What Next?
Federico Fabbrini (Director, DCU Brexit Institute)
Last night the UK Parliament voted resoundingly against the Brexit deal that the UK Government had negotiated with the European Union. As largely anticipated, and notwithstanding last minute political reassurances from the Presidents of the European Council and the European Commission, Prime Minister Theresa May failed to convince a majority in Westminster to back her deal. This decision – which would most likely have gone the same way in December, had the Prime Minister not decided to call off the originally scheduled vote on the deal – throws the Brexit process in disarray.
Tonight, parliament will debate a motion of no confidence in Theresa May’s government. If, as expected, her government survives, there is still great uncertainty regarding the road ahead. Here are four possible scenarios.
1. Default Scenario: No-deal “Hard Brexit”
As a result of the vote by the British Parliament, the default scenario is now one of a hard Brexit, where the UK leaves the EU with no deal. Even though the British Parliament last week passed an amendment that now forces the UK Government to come before Parliament with an alternative plan within 3 days, the clock keeps ticking – and if nothing happens on 29 March at 11pm GMT the UK will be automatically out of the EU. In fact, because so little time remains between now and the end of March, and because it is unlikely that the negotiations on the Brexit deal can be reopened at this stage, today’s vote calls for immediate preparation for contingency planning to mitigate the worst effects of a disorderly exit. Unless…
2. Extension, but to do what?
Unless, facing the approaching deadline of 29 March, the UK calls for more time, asking the EU to extend UK membership of the EU for an additional period of time, so the UK can figure out how to move forward. Nevertheless, this scenario faces limits. First, the UK Government would need to ask for the extension. Second, the 27 Heads of State and Government of the other EU member states would need to unanimously accord it. And it is not clear what the EU would grant the extension for: Is this to run a second referendum? But would anyone be certain that a new referendum would change the results of the June 2016 plebiscite? On top of all this, the EU has a serious problem, which heavily constrains its willingness and ability to extend UK membership for a period of time beyond March: on 23-26 May 2019, there will be European Parliament elections, and the seats in the EU citizens’ house have already been reallocated among member states on the assumption Brexit would happen and the UK would be out. It is difficult to imagine that the other 27 member states would accept keeping the UK in the EU with the effect that European Parliament elections in May would have to take place there too. So this opens up a third possibility:
3. You failed once, do it again
A third scenario is that despite the defeat in Westminster, the UK Government tables again a vote on its deal in Parliament, asking it to reconsider its vote. If the EU is unwilling to renegotiate the deal – as it should be – and unable to extend UK membership – for the reasons just mentioned – it surely could produce another declaration reassuring the British public and politicians about the most controversial aspects of the withdrawal agreement – notably the Northern Ireland backstop. This may give the UK Government the justification to call a new vote on the deal, as reinterpreted in light of the new EU reassurances. Of course this scenario assumes that the EU will be willing to reassure, and that the UK will be willing to reconsider – which is possible, since no one really wants a hard Brexit. But that would require a number of British MPs to change their stand on the deal.
4. Off-the-shelf
Which takes us to the last possible scenario. The deal is rejected, it cannot be re-voted, and yet the British Parliament wants to avoid exiting the EU in March without a deal. In this context, a possibility for the UK Government and Parliament may be to opt for an off-the-shelf solution, e.g. by requesting to join the European Economic Area (EEA) – the free trade zone that encompasses the EU together with Norway, Iceland and Lichtenstein. Since the EEA is an already existing treaty organization, joining it would not require much negotiation – just the acceptance of the other members. And being a member of the EEA like Norway would allow the UK to remain part of the internal market – thus reducing the economic costs of Brexit – while still being outside the EU itself – thus formally honoring the results of the Brexit referendum. Still, opting for an off-the-shelf solution would raise political challenges within the UK. Hence one cannot exclude that another, new scenario may be magically pulled out of the hat. Or so one would hope, if a no-deal Brexit is to be averted. Stay tuned!
Federico Fabbrini is Full Professor of European law at the School of Law & Government of DCU and the Principal of the Brexit Institute. He holds a PhD in Law from the European University Institute and previously had academic positions in the Netherlands and Denmark. He recently wrote an In-Depth Analysis, requested by the AFCO Committee of the European Parliament, on The Institutional Consequences of a ‘Hard Brexit’.