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!

The Sky News story is not new
General legal opinion always was that the PM could apply to revoke on her own

I have wondered ever since she became PM, if that was her plan Z, to avert No Deal at the last possible moment,
too secret to discuss with anyone, except maybe her OH

However, the AG decision - if followed by the ECJ - radically strengthens this option, since she would not have to delay building in a period to persuade other leaders to agree, or sisk it leaking out.
She could wait until say 10pm on 29 March, then revoke

Among many interesting snippets in the AG’s full legal advice is this, at para 21 (about why in due course there might be political pressure, especially from Ireland, for the backstop to be terminated):

“Furthermore, it might be said that the benefits to NI of access to the EU market will far outweigh any contributions to the EU system”.

However, the EU would be very worried if the ECJ confirms the AG opinion,
which is why the Commisision and the European Council presented arguments opposing this.

Before they realised what nasty spiteful crooks this govt is, the EU concerns were about extremist govts like that in Hungary using A50 as a tool for repeatedly forcing concessions.

Now they must be seriously worried about the UK doing this.
Some Brexiters have welcomed the decision, intending to revoke and then invoke again shortly afterwards, to have a fresh 2 years to try again.

Others - even more extreme - say it is clearly too economically damaging atm to leave the EU,
so the UK must wreck it from the inside ,
maybe prise away other countries into a new purely trade bloc, excluding Germany & France, so the UK can be the clear leader.

So, the ECJ decision will be critical:
The EU commission would probably manage to gain agreement if revoke requires unanimous consent,
but would place conditions to hinder any wrecking ideas the UK has.

They might also have demanded compensation for the billions E27 members an the EU have spent.

If the UK is able to unilaterally revoke - and does so - it will face a mostly very resentful, worried E27.
That combined with a self-humilated UK govt that will be eager to blame the EU and to show the world and UK voters that the Tory govt is still a major force .....

Revoke is certainly not turning back the clock to a fantasy serene membership

Lark imo, little chance of the RoI going back on wanting the backstop for the forseeable future,
or wanting to renegotiate the GFA to allow a harder border.

Indeed, the backstop will remain essential until there is a reunited Ireland - the UK and Brexiters have shown that they can't be trusted to keep to the original intentions of the GFA.

Of course NI is a tiny, tiny part of the EU economy, which is why the EU don't mind it getting advantages noone else does.
That would have to remain part of any backstop, because it is an inevitable consequence of no effective border with the RoI, which is an EU member.

Barnier, with his extensive experience in Ireland after the GFA, understands the issues there very well.
The AG and other ECJ judges don't have this specialised knowledge of Ireland

BigChoc indeed; the AG’s (tentative) suggestion on this is based on purely economic arguments - that NI would be so advantaged by its special status that it would enjoy a competitive advantage over Ireland, especially in agri-foods, and that in turn would prompt Ireland to put pressure on the EU to find alternative arrangements.

Obviously any discussion of Ireland/NI based on pure economics is entirely artificial and unrealistic.

www.mirror.co.uk/news/politics/breaking-government-brexit-legal-advice-13689773

The legal advice which has been released "shows a critical weakness"....three guesses what that is?

Surprise, surprise, Irish backstop.

Love how this is being reported as new info the government was trying to cover up by not releasing the legal advice.

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/761852/05_December-_EU_Exit_Attorney_General_s_legal_advice_to_Cabinet_on_the_Withdrawal_Agreement_and_the_Protocol_on_Ireland-Northern_Ireland.pdf

All of the straw-men set up yesterday about compromising security, the names of those who give legal advice etc etc and when you read the document there is absolutely no reason for them to have refused to publish the advice other than hiding the mess we are in.

following - Thanks RTB!!!

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Doesn't Farage resign from UKIP every ninety minutes? Or is that just the leadership I'm thinking of?

I'm getting more optimistic here.

Sorry - I am unhelpfully abbreviating Attorney-General to AG - it’s his advice I am talking about, not the Advocate General’s opinion.

{Paramilitary style shootings remain a common occurrence in Northern Ireland - 20 years after the Good Friday agreement put an end to much of the violence in the country.}
Taken from the SKY news website.

The fact that this is still occurring and not being reported in the rest of the UK simply adds to the 'ignorance' about NI. Outside NI most think the GFA (Belfast agreement) was a 'done deal' and everything is hunky dory and only since Brexit started are we seeing otherwise.

Not sure if this was linked yesterday (too many things happeningnall at once!) butbthis is an interesting article on why we should t accept TM agreement

www.bloomberg.com/opinion/articles/2018-12-04/mervyn-king-says-may-s-brexit-deal-is-a-betrayal

There have been three episodes in modern history when the British political class let down the rest of the country: in the 1930s, with appeasement; in the 1970s, when the British economy was the “sick man” of Europe and the government saw its role as managing decline; and now, in the turmoil that has followed the Brexit referendum. In all three cases, the conventional wisdom of the day was wrong.

O are we in a situation where we are trying, again, to appease the far right? Except that this time the far right is here rather than on the uk’s door step?

Others - even more extreme - say it is clearly too economically damaging atm to leave the EU, so the UK must wreck it from the inside, maybe prise away other countries into a new purely trade bloc, excluding Germany & France, so the UK can be the clear leader.

Tbh I dint think it’s an extreme POV. From the other side, it looks like a lot what the uk has done for years. Trying to be top dog and struggling with the idea their POV has just as much (not more!) weight than any other country.
And trying to stir the EU away from the integration it has to have because of the euro etc...

In the past, There has been a lot of discussion about avoiding a two speed Europe. I think we need that discussion again and make it clear that countries within the euro zone will have a different roles than the other not in the euro zone. Not because you want some top dog countries and some lower down countries but because the needs for integration are different if you are or aren’t part of the euro.

All of the straw-men set up yesterday about compromising security, the names of those who give legal advice etc etc and when you read the document there is absolutely no reason for them to have refused to publish the advice other than hiding the mess we are in.

Not very helpful the next time the Government want's to hide something, really. Not only does this weaken any future attempt to use "security" as a figleaf. It opens the door (under DGRs famous "one is not zero" law) to asking whether other things not disclosed because of "security" really need to be secret.

Always enjoy your summing-ups, RTB

{In the past, There has been a lot of discussion about avoiding a two speed Europe. I think we need that discussion again and make it clear that countries within the euro zone will have a different roles than the other not in the euro zone. Not because you want some top dog countries and some lower down countries but because the needs for integration are different if you are or aren’t part of the euro.}

Absolutely:
There is no way ever that Greece could be the industrial powerhouse to rival Germany, for a start as the mineral wealth and other factors are not there. Similar arguments for most of the other countries of Europe.
Of course since the 1970's the world has changed dramatically so minerals and power sources are obtained from other countries. In many ways these are beyond the hands of the individual countries involved so trying to go 'backwards' is impossible.
The UK appearing as a 'global leader' at more than a handful of activities is so totally unrealistic. Yes the UK is good at some things and sadly leaving the EU will damage that.

Where many in the UK are paranoid is thinking the EU intends to trap them during a transition period during negotiations and not let them out:
the real issue is NOT that the EU would block a sensible trade deal - which would greatly benefit BOTH sides - but that this disfunctional UK govt may not be able to deliver any deal by 2022.

Brexiters want to be able to run down the clock in transition - if we ever get that far with this or any other WA -
without being help back by the NI backstop from their hard right dreams of Canada++ and a US FTA / licence to loot, of abolishing workers' rights, environmental laws etc.

The "weakness" from the UK side just means that the Roi / Barnier has succeeded in getting a genuine NI backstop, despite May's very late switch to a CU++

Of course a backstop should function under all circumstances, or it would't be a backstop.

The RoI and EU would never again trust the UK, so any deal must have a permanent NI backstop,
including Norway++

If the ECJ later decides that revoke must be multilateral after all, then I wouldn't be surprised if the conditions the E27 set include an NI backstop, in case the UK decides to revoke later.

I can’t find the link now but it was widely reported back in the summer that the tipping point where a majority would favour Remain would happen in January 2019 even if nobody changed their mind due to demographics eg older voters dying off and more young people turning 18.
Opinion polls have regularly reported around 75-80% of 18-24 year olds who would vote to remain if there was another referendum. That demographic will continue to work its way through resulting in an ever increasing majority for Remain.
Add to that recent polls showing an increasing number of people who regret their Leave vote.
How long is the ‘shelf life’ of a vote? If article 50 had not been triggered for 5 years after the vote, would banging on about the will of the people still hold much water?
By this dogged determination to abide by the will of the people, more weight is being given to the opinion of people who have died since the referendum than to people who were not of voting age in June 2016 but are now able to vote - who are the people who will be most affected by leaving the EU.
I also think there’s a kind of ‘sunken costs fallacy’ at play - there were all the months of build up to the referendum and 2.5 years debating Brexit, setting up a whole government department, throwing billions of £ at it etc etc that some people feel that we are compelled to go through with it.
A close friend of mine started to have serious second thoughts about getting married- not just last minute nerves.
She was beside herself because she knew she was making a big mistake but felt that she couldn’t get out of it - she was an only child born to older parents who had given up on having children. Her mum wasn’t well and the wedding arrangements had snowballed out of control and she just felt that she couldn’t let them down and that it would be too embarrassing to change her mind.
The marriage lasted for 4 months.

LeClerc I have long thought that the UK belongs in the outer ring, where there are many optouts, no further integration, no Euro etc
probably with the Nordic countries, the East Europeans and possibly with Switerland joining too.
Possible called Ássociate EU Membership

Meanwhile the inner ring continues with the Euro and can slowly integrate further.

It's not about decision-makers and rule-takers, so much as different rings deciding more for themselves, while keeping all regulations re the Single Market common to all

Estimates are that there are 65 million war refugees around the world, with another 200 million climate change refugees, 100s million more economic refugees.

So, one prerequisite for these rings and resuming normal service is to agree a common policy on refugees, which involves funding and creating safe havens in their own regions.

A united EU policy is far more likely to be effective in negotiations with other power blocs, the UN, international laws on Refugee Conventions etc

LeClerc I have long thought that the UK belongs in the outer ring,

The problem there are cretins like Nadine Dorries who would insist that - whatever it is - Britain needs to be at the top table.

Also, too much talk of rings, and you'll have Farage in front of a poster of Hobbits saying "breaking point"

I've posted before that the Vienna Convention on Treaties confirmed what has always been the case in practice:

a country can end its participation in any treaty if its govt wishes

whether that's the Lisbon Treaty (which forms the EU), or a WA after Brexit, or indeed the GFA.

The drawback is naturally that a country that does so, damages its international reputation
AND it may face retaliation from other countries,
e.g. refusing new trade deals, or even cancelling / suspending current ones, or applying tariffs

If that's in Cox's secret advice, it really shouldn't have been a surprise to senior MPs