Even by the standards of the two and a half turbulent years since the Brexit referendum, the last 7 days have been quite something. Four major events shaped the week, and will shape what happens to Brexit now and – I think – perhaps not in the ways that many of the protagonists have yet realised.
First, the ECJ judged on Monday at 9am, that Article 50 can be unilaterally revoked by the country that invoked it. That the country triggering Article 50 could unilaterally withdraw the notification had always been suspected, but not known for sure. Now it is. Kudos to Jolyon Maugham QC, Andy Wightman, and the team that managed to get this case heard by the European Court of Justice. And what a change to the Brexit debate this case has already made – John Major, Kenneth Clarke, Liz Saville Roberts and Leo Varadkar have all cited the case in the last few days.
It strikes me that getting clarity about the revocability of Article 50 is significant in two ways. First, it changes the dynamic away from possibly requesting an extension to the negotiation period (foreseen in Article 50, but requiring unanimity – a high hurdle) to revoking the notification altogether (even if the politicians doing the revoking still were to pay lip service to pursing Brexit). Second, and more significantly, this judgment gives the UK House of Commons a kind of emergency brake – if by the end of January or start of February Brexit still has not been resolved, there is now a clear and simple way for the UK to avoid careering over the cliff to a No Deal situation – just revoke. In my view the clarity provided by the judgment makes No Deal Brexit much less likely – now Parliament knows there is an alternative to No Deal, and it is one that is relatively easily within reach.
Second, Theresa May decided to postpone the Meaningful Vote. This of course caused a lot of consternation – in Westminster and in Brussels later in the week – but the arithmetic here stays the same. May does not have the support to manage to get any Brexit deal through the House of Commons. So when this vote eventually happens – mid January we now think – she is just as likely to lose that vote as she would have been this past week. The delay to the vote had two consequences: it further increased the impression that the government is not in control, and weakened May’s own authority.
So the delay ultimately led to the third development of the week – the ultimately unsuccessful effort to No Confidence May on Wednesday. I do not know whether it was by design or just by luck, but the vote happening before May went to Brussels for the European Council turned out to be significant. Winning the vote 200 votes to 117, a majority of 83, was enough to save her for now, but was hardly resounding. But the significant issue here is that it means May is safe from any further such vote for the next 12 months. She had to agree she would not lead the Tory Party into any future election to secure her party’s backing, but I consider that insignificant – I cannot imagine how May would have led the Tories into a further election anyway. The important development is that May’s Brexit can fail, or be voted down, but she can still survive – this very dogged and determined politician can still manage to survive in office a little longer. With the No Confidence vote out of the way, the Meaningful Vote on the Brexit deal can now come. The Brexiter hard core in the ERG had a bad week – their effort to oust the Prime Minister failed.
The fourth event of the week was May going to the European Council in Brussels, just a couple of days after pulling the Meaningful Vote and surviving the No Confidence vote. And she got absolutely nothing. Some vague reassurance that the Irish Backstop would not be used. But no legal guarantee. And the humiliation Merkel interrupting her speech and asking for clarity. Essentially the other 27 Member States of the EU, and Barnier, Tusk and Juncker too, know that whatever deal they could give May, there is no way she could get it through the House of Commons. So why give her anything at all? That the focus of the media coverage was over a spat about whether Juncker had called her nebulous was testimony to how little actual content was offered at the summit. Had May had to face a No Confidence vote after that debacle, the numbers might well have been closer than the 200 to 117 in her favour.
So, to summarise, what changed?
Britain now knows it has a sort of emergency Brexit brake in that it can revoke Article 50 unilaterally. It will not use that brake initially, but might need it eventually. Pulling the Meaningful Vote – although it provoked the most anger – was probably the least significant development, as everyone knows that May cannot win it whenever it does happen. That May survived the No Confidence vote makes her safer for now, and decouples her own future from the future of Brexit somewhat. Her own career now will not end if and when Parliament votes on the Deal. It also closes down one avenue – I had wondered whether some other Tory leader might have a better chance of getting a Brexit deal, but this option is ruled out for now. And in the meantime the EU sits there and waits for something significant to happen on the UK side.
It strikes me then that we have a narrower range of options still open after this week. May will try to get her deal through the Commons, but even more than before I can see no way for that to happen, but now she is safe in her job, that vote can indeed take place. When that happens the danger that the UK then advances towards No Deal has receded, because the ECJ case gives the UK the emergency brake to stop the whole thing if and when it needs to – and there is definitely no majority in the House of Commons for No Deal. The question then becomes one of whether to postpone Brexit through the unilateral revocation of Article 50, or whether the Commons sees a way out of the mess through a People’s Vote.
We are, finally, approaching the Brexit end game.