Brexit policy riddled with deep discord

Krishnan Srinivasan
Former foreign secretary

BRITISH Prime Minister Boris Johnson calculated that legal ambiguity would enable his minority government to override constitutional formalities and leave the European Union (EU) without an agreement by the end of October, and the purpose of  his suspension of Parliament for five weeks was to prevent it from an oversight of Brexit. To leave the EU without a deal is in conflict with a parliamentary decision, and would pre-empt options for which there is some growing support in Britain, namely, an agreement for an orderly exit or to remain in the EU. 

The decision by the British Supreme Court on September 24 that upholds parliamentary sovereignty, separation of powers and principles of responsible government has profound implications for countries that govern with the broadly-defined Westminster model. In holding that the issue was justiciable, as being not only political, but legal and constitutional in nature, the court underlined that separation of powers between the executive branch and legislature was the essence of parliamentary democracy. On the desirability of a written constitution — which Britain does not have, and the court made no reference to this lacuna — the nature of the case made that implicit.

Parliament resumed its work, which could include a vote of no-confidence in the Johnson minority government and a General Election. But an election at this time is not favoured by the opposition as it could not be held before October 31 and they do not trust the Johnson government not to rush into a no-deal Brexit, with all the negative consequences anticipated in a leaked government document. 

Parliament will supervise the government’s actions, including the proposals it has submitted to the EU prior to the summit of October 17-18. The EU is well aware of the British Parliament’s decision that the government must either propose a modified agreement that has the backing of parliament or ask for an extension of time for more negotiations, but the EU is hamstrung: it deals only with governments and not parliaments. Meanwhile, Johnson declares he will follow the law but neither resign nor ask for an extension, and leave the EU by October 31, ‘do or die’. This is a circle that obviously cannot be squared.

The possibilities for the way ahead can be summarised. The Johnson government could agree at the EU summit on an agreement that is agreeable to Parliament, on the back of which the UK will leave the EU by October 31. This could be a modified Theresa May-EU agreement with editorial tweaks to the accompanying declaration on future trade relations and a different version of the ‘backstop’. 

This is what Johnson has proposed to Brussels. But the backstop, designed to prevent a hard border between the Republic of Ireland and Northern Ireland, in other words, to ensure an open border between Ireland that is in a customs union and single market with 26 other EU countries, and the non-member Northern Ireland, an appendage of the United Kingdom, will prove as vexatious as ever. Some kind of border between Northern Ireland and Ireland, or between Northern Ireland and the rest of UK (i.e. on the Irish Sea), or between Ireland and the rest of the EU seems inescapable. Belfast rules out the second alternative and Brussels rules out the third. The EU is emphatic about effective controls to be imposed at whatever border is determined.

Assuming that Prime Minister Johnson has no withdrawal agreement by October 19, he is obliged by parliament to request additional time until January 31, 2020, in order to continue the negotiations. In this scenario, Johnson might resign, leaving a caretaker government to request a postponement. The EU would probably accept an extension over France’s objections, especially if Britain could by that time be proceeding to an election or second referendum.

If by October 31 or any new agreed time limit, Britain still remains in the EU, there would be an early General Election or second referendum or both. The outcomes of these are impossible to predict, since the election would not clarify the Brexit issue because both major political parties are divided on it. The Conservatives under Johnson have expelled Remainers and moderates and reduced themselves to a 42-seat minority in the House of Commons. If there is no exit from the EU before an election, Nigel Farage’s Brexit Party would take votes and seats from the Conservatives. 

The Labour Party plans, if it attains office, to conclude a withdrawal agreement with the EU within three months and hold a referendum within six months, but is struggling for unity under Jeremy Corbyn and ambushed by those supporting a Remain-only platform. The dilemma is that Corbyn and the Left of his party are convinced that the EU is run by corporates and moneyed men, but the EU’s social legislation comprising working hours, minimum wage, health safety, and equal pay for women, are worth fighting for even by those ardently desiring Brexit. The Liberal Democrats under Jo Swinson have opted for Remain and show no concern about the 2016 referendum result, citing that the leave vote was only 37 per cent of the electorate. 

The Johnson government is in difficulties of its own making since the Irish issue and Britain’s future trading arrangements with the EU require a non-ideological approach to negotiations. Falling back on WTO arrangements would result in far lower level of trade access to the EU than presently enjoyed by British business. A free trade agreement (FTA) with substantial tariff and product alignment could mitigate the backstop issue, but any British FTA with the EU has to be aligned with the EU’s other FTAs and with Britain’s FTAs elsewhere, including those on the anvil with the US and Australia. Such trade negotiations can take years and in some cases (such as the proposed EU-India FTA), decades. 

The deep chasms in Britain created by Brexit will erupt into disorder without the only safety valve in sight, which is Brexit with a Britain-EU deal. Remaining in the European Union will be acutely resented by those who voted to leave in the referendum. 

In the end, neither Leavers nor Remainers can expect fully to get their way. The situation calls for common sense and compromise. As of now, both are in short supply in the United Kingdom.