October 18, 2018
We had originally planned to spare you the details of arcane UK parliamentary procedures for the ratification of a Brexit withdrawal deal, because we believe that those procedures will never be triggered. We still think that. But, as we follow the UK debate, we realise that they might matter for a different reason. The rules might give MPs a mistaken incentive to reject a withdrawal deal.
The issue came to light in the context of a bullying scandal involving the speaker of the House of Commons, John Bercow. The formerly bewigged Speaker is not only the master of ceremonies but has the right to decide what parliamentary amendments are deemed admissible and which are not. After the rejection of the so-called meaningful vote amendment, the Speaker now has the right to decide whether the House could vote to take matters in its own hand if there is no deal by January. In extremis, this could involve the House calling on the government to ask for an extension of the Article 50 deadline to allow for a second referendum.
In the more likely event of a deal, the issue involving parliamentary procedures is going to be a different one. It is about whether, when, and to which extent parliament has the right to pass amendments to the withdrawal treaty. Dominic Raab, Brexit secretary, yesterday sent a letter to MPs outlining the government’s preference for a more streamlined ratification process. But in the end, it is Mr Speaker who will be in charge. Never underestimate the tendency of imperial overreach in the House of Commons.
There are amendments that could invalidate the treaty, and whose passage would constitute outright non-ratification. This includes an amendment to subject passage to a future referendum, because this could only happen if the European Council were to agree to an extension of the Article 50 deadline. When Brits discuss the second referendum or alternative deals, they always tend to take the EU’s position for granted.
We doubt very much that the EU would be much impressed in an open-ended referendum process, especially one forced upon it by a reluctant UK government. The timetable of Article 50 and the unanimity requirement for an extension are the reasons why we think the UK parliament is ultimately facing a binary choice - between accepting a deal or a no-deal Brexit. The talk about parliamentary procedures serves mainly to prop up the egos of dejected MPs, but in reality constitute a diversion. Those who hyperventilate have either not read, or failed to comprehend, Article 50, or if they do, they misjudge the interests of the EU.
In this context, we noted a comment by Fabian Zuleeg. He writes the EU would of course welcome a decision by the UK to reverse Brexit. Whether this is legally possible is another, as yet untested issue. For the sake of argument let us assume that it is.
But this would have to be the result of a genuine change of heart - not an opinion poll. He said it is unlikely this will happen inside the remaining time. He writes that from the perspective of the EU27, the option of a Brexit reversal has disappeared from the radar screen.
The speaker of the House may get away bullying his staff, but he has no means at his disposal to bully the EU.