You could say its been an eventful day in BrexitWorld!
- The Advocate General's opinion (non-binding) is that a50 CAN be revocated unilaterally provided its in good faith (not done merely to extend the a50 period and is a settled commitment to stay in the EU. This is NOT the ECJ verdict. This is still due. The ECJ does occasionally disagree with the Advocate General, but this is rare. This is important and will affect how MPs view how they will vote next week in the Withdrawal Agreement vote.
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IF the ECJ rule in this way it does not rule out the EU appealing the decision.
The logic of the AG argument largely centres on the point that if the UK is sovereign then it can unilaterally withdraw from international treaties so it must also be allowed to revoke that decision otherwise it's not sovereign. Its hard to see how the ECJ will be able to go against that opinion.
Politically that could make an appeal difficult for the EU. However there is also much to say the EU WILL appeal though, if only because of concerns about how the a50 process could be abused by other countries such as Poland or Hungary to effectively renegotiate their status in the block. This possibility should not be forgotten. The 'good faith' argument is a legal minefield given the UK's behaviour in the last two years, if someone did want to challenge an ECJ unilateral ruling.
- The government lost two votes regarding contempt of parliament and not releasing the full legal advice on Brexit.
The first vote was for a government amendment which they lost by 4 votes - which has been claimed is down to the DUP voting with Labour instead of the government. The result was 311 to 307 votes.
The second vote was for the actual contempt motion itself. Again the government lost. The result was 311 to 293 - or 18 votes. So some Tory MPs abstained on this vote.
This marks the point where the government is officially a minority government and May no longer has a majority.
- Dominic Grieve tabled a motion (hereby named Grieve III), which was essentially a re issuing of Grieve II - the motion that he had proposed previously, but had been talked out of my May, only for her to burn him shortly afterwards.
This motion was supported by the regular Remain Rebels as well a bunch of known (and not insignificant) May Loyalists.
The effect of the amendment is thought to create a situation where 'Accidental' No Deal is no longer a default position. Instead if no deal is reached, it throws power back to the HoC to advice the government what steps they should now take.
It does not rule out the possibility of No Deal. It is still possible. Its just a lot less likely to. Brexiteers are arguing that the vote is not legally binding (Technically its not and they are correct). This seems highly unlikely in practice (politically not an option - the vote is politically binding, if not legally) even if that is the case. See the referendum for legally v politicially binding and how that has worked out. But there is room for a mess here too.
There is certainly no majority for No Deal in the HoC.
Grieve III was won by 22 votes (321 to 299). Thus making this a SIGNIFICANT vote in more than one respect.
- Prior to the Grieve III vote, there were rumours that May was set to lose Tuesday's WA vote by up to as much as 400 votes.
There was a lot of talk that the government were prepared to lose the vote, with a view to representing the deal at a later stage. The vote next week was about minimising the size of the defeat.
However this relied on May being in full control of the options for Plan B. Grieve III limits this somewhat and puts power in the hands of parliament. (Parliament has taken back control you see).
It does not direct the government as such but it makes it much more likely that Plan B will have to be Nick Boles suggestion for Norway, rather than May's version of Plan B and a simple re-presentation of her deal.
Of course, this is over simplified as the EU and the EEA ALSO would have to go for the Nick Boles plan. The suggestion is that Norway WOULD agree to it, PROVIDED we were fully committed to it for the long term. But its not just down to Norway.
- All this might well focus minds ahead of next week's vote. There are now three forces at work
a) Brexiteers fearing that the likelihood of remain or a soft brexit have gone up, thus potentially being more inclined to support May. (This doesn't appear to be happening)
b) The overall chances of No Deal decreasing, thus soft leavers being happier to pursue the opportunity for a soft Brexit (Norway deal) rather than supporting May's deal - at least at this stage.
c) The hope of remaining due to the AG verdict combined with Grieve III encouraging remainers to not back May's Deal as they no longer fear the possibility of Accidental No Deal.
It has been suggested that its possible that the government allowed themselves to be defeated on the contempt motion in order to woo the ERG. This seems a bit of a stretch, as May has repeatedly proved that she isn't this kind of genius and Cox would have to have agreed to be the sacrifical lamb for that.
- The contempt of parliament motion now passes to the Parliamentary Privilege Committee to decide what punishment will be levelled on the government and Cox in particular. It is worth noting that at present, there are 7 on the committee; 3 Cons, 3 Lab and 1 SNP. Which you would suspect does not bode well for government.
- There is STILL some arguement over which version of the legal advice the government will publish as a result of the contempt vote, and when it will publish it. In theory there could be another contempt vote if it fails to act in a way that the house is satisfied with.
- The government are pretty pissed off at the Humble Address motions, and are now seeking to find ways to limit them.
- There is some suggestion that something has happened that opens the door for the US to leave NATO. This would be hugely significant to Brexit. Keep your eyes on this.
- When Cox spoke in the commons earlier this week, he made the point that Brexit means we are bound by the GFA to remain in the ECHR. And the ECHR also binds us to the GFA. Again significant, when talking about wanting to force a situation where we have Accidental No Deal, given the strength of feeling about wanting to leave the ECHR. If the Accidental No Deal door is closed, then this might also change ERG opinions as their motivition to have a hard Brexit is also reduced.
And of course the backstop is, to all intents and purposes, the GFA. It will be interesting to see how the backstop is framed in the full legal advice.
- Going back to point 1, there are still obstacles to remaining. May and the Conservatives are HIGHLY unlikely to want to revoke because of the damage to the party.
There is some talk about who has the power to revoke; parliament or the PM. The overall problem is that the PM does not have the power to overturn Acts relating to Brexit which have been passed by the HoC, although the original a50 vote passed the power to enact a50 to the PM from the house - and presumably the reverse would also be true if the PM has the power of a50.
Thus to revoke - IF the ECJ say we can - it has to be passed by parliament. At this stage there is no parliamentary majority to remain. This, of course, could change. It depends on what the alternatives are - arguably the likilhood of remaining is perhaps higher if accidental brexit is possible and the only alternative. Otherwise a soft exit would seem more logical.
- Corbyn's speech in the commons in response to May's presenting the Withdrawal Agreement sounds remarkably like continuity remain, to an extent that he has not previously gone.
Conclusion:
Overall, Grieve III is massively positive, purely from the point of view of avoiding No Deal.
Next week STILL gives the opportunity for MORE amendments which could create enormous problems though. The potential to end up in a situation with amendments which are positions which are diametrically opposed to each other or to the EU or the legal situation are huge. This would mark something of a crisis in its own right.
Its difficult to see where May goes from here. Her ability to force her deal though, rested on the leverage of the fear of No Deal / being in complete control of what Plan B was. Grieve III kills a lot of that, and combined with the preliminary opinion on revocation. Her only alternative is to go for Norway - like a lot of her Cabinet have already pushed for, but this would be a massive u-turn for her. The Times were speculating this morning that she will walk next week. But we've been here so many times before.
I suspect other posters and commentators will read all this differently to me (will be interesting to see how others view it) but this is my best shot at trying to make some sense of it all. I think the biggest bone of contention will be the balance of probability of the options out there.
PS: DO NOT forget the EU's own self interest which is consistently forgotten in the UK coverage and debate of the subject.The EU have no obligation to do a Norway deal. Nor to extend a50 if they do not see it being in their own interests to do so.
I wouldn't get hopes up too much just yet, but today does feel like a potential turning point. We have to get through next week though. I don't rule out anything at this point. All options are still possible and I wouldn't like to put money on anything. But a soft brexit or remaining are more tangible than they were at 7am this morning imho.
Feel free to take this all apart with your own analysis!
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