Sunday , December 16 2018
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Brexit: Coming to a Head?

Summary:
I’ll attempt to be brief, since events are very much in play, and there is still a great deal of noise relative to signal. The overarching issue is that while some exciting skirmishes are underway, what matters is the configuration of forces on the battlefield. We’ll discuss the two big events of the day (so far) and then will turn to the overall state of play. Today’s Excitement Contempt of Parliament. As UK-based readers probably know all too well, the Speaker of the Commons approved a cross-party effort to launch contempt proceedings against the Government for its failure to release the full text of the legal advice it received on Brexit, per a motion unanimously approved in Parliament on November 13. The DUP joined the petition to the Speaker of the Commons, so if all the parties

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I’ll attempt to be brief, since events are very much in play, and there is still a great deal of noise relative to signal.

The overarching issue is that while some exciting skirmishes are underway, what matters is the configuration of forces on the battlefield. We’ll discuss the two big events of the day (so far) and then will turn to the overall state of play.

Today’s Excitement

Contempt of Parliament. As UK-based readers probably know all too well, the Speaker of the Commons approved a cross-party effort to launch contempt proceedings against the Government for its failure to release the full text of the legal advice it received on Brexit, per a motion unanimously approved in Parliament on November 13.

The DUP joined the petition to the Speaker of the Commons, so if all the parties supporting the proceedings have a full turnout and reject the Government’s effort to amend the motion (to refer it to the Committee of Privileges), the censure will pass. If the Government persists in not releasing the legal advice in full, Labour intends to seek sanctions of the ministers involved, the Attorney General Geoffrey Cox (who did quite the imitation of King Lear in his presentation in Commons yesterday) and/or Cabinet Office minster David Liddington, which would most likely be suspension from Parliament. Our Richard Smith points out another option would be to lock them up in Big Ben (more formally, “commit to the clock tower of Westminster”).

If May were someone other than Theresa May, she would hand over a redacted version of the advice. More bad press for May and her government when she is just about certain to face a vote of no confidence next week is not a very bright move. She could try pleading that the redacted parts are ones that it is in the public interest to keep confidential from the EU.

Having this vote today also delays the start of the debate on the Withdrawal Act.

Senior ECJ adviser says he believes UK can withdraw Article 50 notice unilaterally. The key part of the press release from the CJEU, as the EU calls it (emphasis theirs):

In answer to the question from the Scottish court, the Advocate General proposes that the Court of Justice should, in its future judgment, declare that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice….

However, that possibility of unilateral revocation is subject to certain conditions and limits. First, like the notification of the intention to withdraw, the unilateral revocation must be notified by a formal act to the European Council. Secondly, it must respect national constitutional requirements. If, as is the case in the UK, prior parliamentary authorisation is required for the notification of the intention to withdraw, it is logical that the revocation of that notification also requires parliamentary approval. There is also a temporal limit on the possibility of revocation, since revocation is possible only within the two-year period that begins when the intention to withdraw is notified. The principles of good faith and sincere cooperation must also be observed, in order to prevent abuse of the procedure laid down in Article 50 TEU.

As I’ve said before, I fail to understand the importance attributed to this case. Multiple influential EU country heads and politicians have said the EU would let the UK rescind Article 50 up to the very last minute. The EU has every reason to do so. It might be procedurally a fudge, as in they might have to provisionally accept the petition and tidy it up later….but they provisionally accepted the CETA treaty and started trading on that basis a year before it was formally good to go.

However, there appears to have been a bizarre taboo among MPs against mentioning backing out of Article 50 as an option, let alone advocating it. For instance, Kier Starmer has claimed he was devising a Parliamentary strategy to make a crash-out Brexit impossible, yet as far as I can tell, has never once mentioned Article 50. Earth to MPs: unless you revoke the Article 50 notice, a crash out happens no matter what else you do. So this ruing and the attendant press coverage will presumably disinhibit them.

Now having said that, reading between the lines of a Guardian article about the opinion (which is very likely to become official, since these determinations by the ECJ adviser are seldom reversed by the full court), it appears that the Government may have misled MPs as to the how the EU would respond to the UK seeking to back out of Brexit. So the perceived barriers may have been higher than they were.

But the actual barriers are still high. It is extraordinarily unlikely that Parliament would vote to reverse Brexit in the absence of a referendum that gave unambiguous approval of “Remain,” and it seems improbable that the EU would give the UK a long enough deferral of the Brexit date to accomplish that.

The Withdrawal Agreement Votes

Can someone please explain to me what Kier Starmer, the Shadow Brexit minister, thinks he is up to with his silly pretense of amending the Withdrawal Agreement to prevent a no-deal Brexit? First, the critical steps to accomplishing what he claims he is trying to get done is to remove the provision in the original bill authorizing Brexit that hard-codes the Brexit date and time, and as discussed above, revoking the Article 50 notice.

But second, and more seriously, the whole premise is daft. If the bill were to pass, there would be no crash out. And if the bill fails, the amendments fail too.

What Starmer claims he is doing can be accomplished only via primary legislation. And I gather that in the UK, so-called “private bills,” as in ones not initiated by the Government, pretty much never get done.

So the only way to do what Starmer wants to do is get rid of May at a minimum, and better yet, get a new coalition in charge. You’d think Labour would have a better shot of doing that by saying that the only chance of preventing a crash out if her bill is voted down is to turf her out. Why not be saying that now, rather than wasting time with pointless theatrics?

What Happens When May’s Bill Is Voted Down?

The trivial answer to the question above is that things get chaotic, but let’s focus on thing that look reasonably likely. May does not have a Plan B. It’s not her style. The closest thing she has to that is the hope that Mr. Market will react so badly that Parliament will be willing to undertake a second vote after the Christmas holidays. The fact that markets are illiquid at year end means price action is likely to be more extreme than it would be at other times of year.

But May has to last until next year for that scenario to play out.

Labour has said it would introduce a motion of no confidence if May’s Brexit were voted down and there is every reason to take them at their word. Some Conservatives have already sent in letters calling for a Motion of No Confidence, and the DUP is likely to vote against May. DUP leader Arlene Foster has recently said the UK could get a better deal from the EU if it pushed for it, which contradicts May’s claims. It doesn’t matter whether Foster believe this or not; it legitimates the DUP voting to toss May over the side.

Hoever, the DUP does not want a General Election. It would almost certainly lose its powerful position as the key member in a coalition. Neither do the Tories. So if the Tories can rally around a new PM (Michael Gove?), the DUP would very likely join them. Recall that under the Fixed Term Parliaments Act, the Government can forestall a general election if it can act quickly enough. From Parliament’s website:

If such a motion is agreed to, and a new government with the support of a majority of MPs cannot be formed within a period of 14 calendar days, Parliament is dissolved and an early General Election is triggered.

The fact that May might be turfed out right before Parliament goes out of session starting Friday December 21 means that minds in the Tory party are very likely focused on this question right now. And since a General Election will not have been called under any scenario by the time of the EU Council meeting on December 13-14, one wonder what they will have to say.

If the fate of the UK and EU weren’t going to be so strongly affected by how these power plays resolve, this would make for great theater. But too many people stand to be losers.

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