Westministenders: Plan B on the back of a Contempt Envelope

[RedToothBrush]

You could say its been an eventful day in BrexitWorld!

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. The government are pretty pissed off at the Humble Address motions, and are now seeking to find ways to limit them.

10. 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.

11. 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.

12. 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.

13. 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!

red Prepping is ongoing for No Deal.

If we do get No Deal, would there be enough time left for it to matter much whether it is intended, or just blundered into accidentally.

I'm not sure if it is possible to ramp up further, condiering the govt ability to plan anything (i.e. subzero), resources and time available

• it is very unlikely that the EU would extend A50 just to help manage No Deal

Place-marking and de-lurking to say thank you for new thread. More hopeful today but still not giving up my stockpile of supplies in the cupboard.

Apologies if this has already been raised, but I’ve had a busy day...
Something I really don’t understand is the amendments system. So the Grieve 3 amendment, how does it still apply (or Benn’s) if the WA deal gets voted down?

This from today

www.theguardian.com/politics/2018/dec/04/norway-option-is-worst-of-all-brexit-outcomes-for-uk-say-eu-sources-rules
Norway option is worst of all Brexit outcomes for UK, say EU sources

Britain told it would have to adhere to EU rules more strictly than Norway

Senior officials say the UK would have to follow the relevant parts of the EU rulebook in full and would not be allowed to delay the adoption of laws, a cause of perennial tension between Brussels and EFTA countries. Given the size and proximity of the British economy, EU member states would regard the competition risks too great, according to one EU senior source, who added: “With the UK we cannot accept such a slippage.”

The EEA agreement consists of 6,000 EU legal acts, up from 1,875 when the treaty came into force in 1994. About 500 EU laws are yet to be adopted by the four EFTA countries, including scores of banking regulations that the EU passed after the financial crisis. (Non-EEA Switzerland participates in the single market and has been accused of similar delays).

Also

Norway also pays more per capita into the EU budget than the UK, raising questions about “substantially smaller” contributions promised. While the EEA does not cover agriculture or fisheries, existing EU red lines are unchanged, meaning if the UK wants tariff-free access for goods it will face demands that existing rights for EU fishing fleets are maintained.

Joining the EEA also means accepting the free movement of people, the reddest of May’s red lines. Norway-plus advocates have seized on the “emergency brake“ in the EEA agreement, which allows a country to take unilateral measures in the event of “serious, economic or societal difficulty”.

Many in the EU think British MPs have misunderstood the working of the brake, which is subject to consultation with other EEA countries and could lead to fines for misuse.

Not much love for the idea here.

I wonder if Norway +++ might make it easier to plead to get back in properly, in say 10-15 years, when the voter generational shift has rolled forward sufficiently.

Suspect we’d have to ask really nicely though.

Something I really don’t understand is the amendments system. So the Grieve 3 amendment, how does it still apply (or Benn’s) if the WA deal gets voted down?

Think of Grieve III as a backstop. (hahaha!)

It stops the UK from leaving without a deal, without the input of Parliament to try to avert the situation. (cavet via a politically not legal binding process)

It means if May's deal fails, parliament has influence on what May does next. May can not just leave without consulting parliament first.

red Norway++ was first proposed by Barnier
and was his suggested Brexit for much of the negotiations, until May finally chose CU++

Hence it was always his and the EU Commission's favourite option
It's surprising that they have now gone off it - unless they are really alarmed at the risk of No Deal

..OR...
I've suspected before that some Guardian anonymous "EU sources" are actually Remainers,
past / present Uk civil servants in Brussels, or even just whispers from a Blair mouthpiece in the UK who claimed to have heard it from the EU.

Remain leaders were trashing the Norway option even before the referendum - which is why No Deal became mainstream so quickly and has been so difficult to combat.

Those Remain Ultras have always tried to keep the only Brexit option as No Deal, in the belief that then the people and the HoC will turn to Remain in desperation.
Blair is really pushing this to Labour MPs especially.

Well, that worked really well in the referendum, didn't it 🤔

I don't trust Blair's masterplan for Remain any more than I trusted his masterplan for Iraq

May is supposed to "listen" to the HoC, but she doesn't have to do what they tell her,
unless
they pass a legally binding bill / amendment
or pass a Vote of No Confidence in her govt and force a GE

We've seen today and on many other occasions as PM and Home Sec that she stubbornly does what she wants, while ignoring legal limits & political conventions
e.g. she deported people, while appealing judge's decision that she shouldn't do so

She might well go to various courts to block / appeal any attempt to overrule her authority, or to punish her or her ministers.
MPs who support her could filibuster, as could she and her ministers.

Of course, she could just decide not to bring any fresh bills to the HoC after her WA is defeated, so they have nothing to vote down or vote on

We are nearly out of time this year and have just under 3 months next year.
She might - if she is really determined - just manage to deliberately run out the time until 29 March and automatic No Deal

FOM and Article 112

Article 112 of the EEA / EFTA treaty allows member nations to set limits on immigration if "serious economic, societal or environmental difficulties" arise

BUT
retroactive application of the Article, after we have joined,
could only take account of "serious economic, societal or environmental difficulties",
arising AFTER we had re-joined the EEA.

So, the UK would have to give notice of intent before it joined, with the issue then becoming part of the accession negotiations.

re that Guardian article and "Norway paying more per capita:"

iirc, an analyst, probably RNorth, checked in deatil what Norway paid and their GDP compared to ours and concluded that the UK would probably pay less in EEA / EFTA than now and less per head than Norway

Also, Norway chooses to pay into East European development, decides exactly on which projects its money goes and how it is disrtibuted.

Oh my days! I've been on a roller coaster ride since 2016.

Plaice mat king

Thanks to all contributors

Thanks Red. So woefully behind I’ve decided I won’t try to play catch up anymore (pretty much missed the last thread due to life-stuff) but instead am jumping straight in on this one. I think we’re all feeling a little more optimistic this evening. Keeping everything crossed. Makes typing very tricky...

Don't be optimistic too soon

Some Leavers - including on RNorth's thread - are saying the UK should revoke until it decides what it wants, #then invoke again

Some have also suggested invoking and destroying the EU from inside

This is why the EU Commission and EU Council opposed the unilateral case in the ECJ - in order to impose conditions - and may even appeal if the ECJ follow todays AG opinion , as may the UK.

Of course, the ECJ may specify conditions for unilteral revoke, in order to prevent what the AG called "abuse" by the revoking state, e.g. how long before they can next invoke

(Ironic that this is one of the few areas where the UK govt and the EU are aligned)

Marking place, just caught up, talk about an eventful day

Interesting post. Point 2 is incorrect - there's no appeal from the decision of the ECJ. However, it will be for the Scottish court to apply the ruling to the facts of the case.

PMK
Can't wait to be viewed as a deluded prepper crank again rather than someone who actually has some useful advice for No Deal planning in the home.

Thanks Red, but I meant that I don’t understand how any amendments get to apply if the deal itself gets voted down.

Can't wait to be viewed as a deluded prepper crank again rather than someone who actually has some useful advice for No Deal planning in the home.

I am all ears, what's a family to do?

Don't want to spoil the mood here by trotting out my advice again on this thread. Happy to see you over on the Prepper topic where there is loads of practical sensible affordable advice specific to Brexit preps as well as prepping generally and no tin foil hats on show.

Holidayshopping

'Plaice mat king' came about many Westministenders threads ago when someone typed 'place marking' and autocorrect changed it to 'plaice mat king' (or 'place mat king' - can't exactly remember which).
The rest is history, as they say...

Thanks Red, but I meant that I don’t understand how any amendments get to apply if the deal itself gets voted down.

Think it helps to distinguish between the documents agreed with the EU and the actual U.K. legislation in the Withdrawl Act.

There is the WA and the political declaration these two are basically like contracts and statements I guess. There's a long political international agreement basically setting out what happens over the next two years and bits of the possible framework for the future relationship between the UK and the EU, .

Then entirely domestically there's the EU Withdrawal Act 2018 which repeals the European Communities Act 1972 and gives Parliamentary approval of the withdrawal agreement with the EU.

Grieve and Benn and Loathsome amendments are to the 2018 domestic act.

If the WA is not approved next week ( seems likely) the government must come back to the House within 21 days and “make a statement setting out how they propose to proceed."

Chinks of light. Does this mean Labour's supporting or abstention strategy over the last 2 years was the right one.

It was place mat king' but then fishing rights featured...

Oh .... ok @GardenOfSeeds , you might be too busy (who isn't?) to wander over to the Prepper topic ....
Imagine being stuck in your house for 3 days, say, snowed in. Imagine breakfast, dinner and tea (I'm Northern, humour me with meal names) entirely from your cupboards. Imagine hygiene needs for the house - toothpaste, soap. And treats because everyone will be pissed off. Have that three day buffer in your house.
If you do no more than that you will be in a better position than most to deal with difficulties. You can suss out how things are in your area without the distraction of having to feed everyone. You may want to do more. That's up to you and there's loads of advice on the Prepper topic.

Watching May from last night it's clear she can't open her mouth without lies spouting forth.