#Brexit: Deadlock, with no clear way forward

This article is from this week’s BEERG newsletter (published Sept 25th), which generally only goes to BEERG members. Because of the very disruptive impact #Brexit will have on the HR/ER profession we thought it worthwhile to share our views on where things are with the Linkedin community.

It seems unlikely that there will now be a Brexit Withdrawal Agreement (WA) in place before October 31st, the day Prime Minister Boris Johnson has said he will take the UK out of the EU “do or die”. But that does not mean that the UK will actually leave the EU on or before that date. As of today, September 26th, no one can predict what is going to happen. All of which leaves citizens and business in a complete state of uncertainty. It is no way to run a serious country.

The previous prime minister, Theresa May, negotiated a WA with the EU which covered the UK’s financial obligations to the EU, reciprocal citizens’ rights and, most controversially, a backstop designed to prevent the emergence of a border on the island of Ireland. May also agreed to a forward-looking Political Declaration which would have seen the UK closely aligned with the EU in the future.

For a variety of different and often conflicting reasons, May’s deal was repeatedly rejected by the House of Commons. This resulted in her resignation and replacement by Boris Johnson. Johnson declared that he wanted to “bin the backstop” and tear up the Political Declaration. Instead of staying close to the EU after it left, he wanted the UK to have a “Canada-style” trade agreement. He wanted the UK to have maximum freedom to do its own trade deals and to be able to diverge significantly from EU regulations covering product standards, labour laws and environmental regulations.

Johnson said that if he didn’t get the Brexit deal he wanted he would take the UK out of the EU on October 31 with no-deal. He would rather “die in a ditch” than not do so. As I write there are people out looking for suitable ditches.

The EU was quick to make it clear to Johnson and his negotiators that the backstop would only be scrapped if the UK could put forward “legally operative alternative arrangements” that did exactly what the backstop did. The EU was prepared to listen to any proposals that avoided the need for a border on the island of Ireland and protected the integrity of the EU’s single market.

To date, the UK government has not put forward any such proposals. They have suggested an all-island agri-zone, though with exceptions, and have said that there will be a need for a border to deal with issues such as tariffs and VAT, but that border could be moved away from the physical border, as if that somehow made it disappear.

As both Tony Connelly and Peter Foster have reported, the EU regard Johnson’s “concepts” as a major step backwards, making any sort of exit deal difficult to reach.

Unfortunately for Johnson and his “do or die” Brexit strategy he doesn’t have a majority in the House of Commons. Such is the weakness of his position that the Commons has actually passed legislation – the European Union (Withdrawal) (No. 2) Act 2019, or ‘Benn Act’ after its Labour sponsor Hilary Benn – instructing him to ask the EU for an extension to the Article 50 exit process if he hasn’t got a deal by October 17 next, immediately after the next meeting of the European Council.

To avoid the Commons further tying his hands Johnson and his advisors hit on the idea of suspending parliament for five weeks, on the pretext of needing time to prepare a Queen’s Speech, a formal statement of the government’s legislative program for the next session of parliament. Knowing full well that the stated reason for the suspension was not the real reason Johnson’s opponents began legal action against his move, culminating in a hearing last week’s in the UK’s Supreme Court.

Tuesday, September 24th, the full Supreme Court handed down a unanimous 11-0 decision saying not only that Johnson’s actions were wrong, but that parliament was still sitting and had never been prorogued. While Johnson might have been tempted to find a way around the Benn Act such was the damning nature of the Supreme Court’s momentous ruling that that option now appears to be ruled out.

The EU knows that threats of no-deal by Johnson’s negotiators are baseless. It is no longer leverage if indeed it ever was. Threatening to shoot yourself in the head if you don’t get what you want seldom works.

If Johnson wants a deal with the EU before October 31st, he only has one option. That is to take the deal Theresa May negotiated, strip out the UK-wide backstop and reinsert the Northern Ireland-only backstop. This is what the EU originally wanted and would be happy to run with. This would simply amount to the EU returning to its original offer with the UK withdrawing the demand for the UK-wide backstop that it had proposed.

The problem with going down this road is not on the EU side. It is on the UK side. There is probably no way that Johnson can now get any deal through the Commons. He has burnt too many bridges, made too many enemies. He is not trusted by many on the Conservative benches, never mind the Opposition. He has zero credibility.

What Labour MP is going to vote for Johnson when he has told the EU that he wants a future deal which will allow him to undercut EU employment laws? What Labour MP is going to go back to their constituency and proudly tell party members that they put the legal entitlement to four weeks’ holidays, to equal pay and to collective redundancy consultation at risk for the sake of Brexit? Yes, there will be one or two who will do so, because they fear the ire of their working-class voters who support Brexit and simply want their MP to ‘get it done’ without any further delay. But they will probably not be enough to get any Johnson deal through the Commons.

In most circumstances, if parliament is deadlocked an election is called to see if it will change the balance of forces. Johnson would dearly love to call one as he believes he can win on a “People v Parliament” ticket. But then, Theresa May also thought she had it won when she called an election in 2017. It turned out differently. She lost her majority in the House which fatally undermined her chances of securing a deal that Parliament would support.

When it comes to Brexit UK politics appears to be in one of those mazes which, while there is a way out, it is close to impossible to find it.

As for the EU, it is faced with a country that voted to leave but can’t make up its mind how it wants to leave or on what terms. With each passing day, it becomes clearer and clearer that the vast majority of UK politicians have no real idea what leaving the EU actually involves because most of them never really understood what EU membership meant.

For business, the situation could not be worse and makes planning impossible. When, if ever, will the UK leave the EU? Will it leave abruptly, or will there be a transition period? What sort of future relationship does the UK want with the EU after it has left? Will the UK’s relationship with the EU chop and change with every change of government?

Brexit was always going to come to this place, this impasse, because Brexiteers deliberately refused to define what Brexit meant before the 2016 referendum took place. It meant different things to different people. The only way to resolve such differences was through debate in Parliament. But Brexit Ultras insisted that they, and they alone, were entitled to define what Brexit meant. Those who opposed them were enemies of the people.

What happens next, we will just have to wait and see.

You can check out our weekly BEERG #Brexit #Blog at www.beergbrexit.blog