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Brexit Lexicon: Update

June 25, 2019 Download PDF

As an aid to those continuing to monitor the many moving pieces in Britain and across the Channel as the Brexit saga continues, we provide below our summary of recent developments and our updated Brexit lexicon.      

Recent Developments

Once Theresa May announced on May 24 that she was stepping down as leader of the Conservative Party and as Prime Minster, the focus shifted to the leadership contest to choose her successor (though some will say that campaigning started in the weeks leading up to that announcement).  Candidates have been setting out differing visions of Brexit, and while the leader is being selected by Conservatives (first by the MPs (which phase has been completed) and then by the members of the Conservative Party), those differing visions of Brexit have very real consequences for the country and, in many respects, the rest of Europe as well.  One might go a step further and say that the outcome of that contest could have global implications if the next Prime Minister has campaigned on a platform of leaving the EU on October 31, with or without a deal, and chooses to leave without a deal.  The sense of uncertainty is heightened by the fact that EU negotiators and ministers of EU member states remain steadfast in their position that the Withdrawal Agreement cannot be renegotiated, although they have left open the possibility of discussing modifications to the Political Declaration.  The message that the EU27 are not prepared to reopen the Withdrawal Agreement was conveyed most recently by the European Council President Donald Tusk last Friday following the end of the June European Council summit. 

At the beginning of last week, there were six candidates still in the running to succeed Theresa May – Boris Johnson, Michael Gove, Jeremy Hunt, Sajid Javid, Dominic Raab and Rory Stewart.  Five of the six candidates (Rory Stewart being the sixth) embraced a preferred outcome – renegotiating the Withdrawal Agreement – that is directly at odds with the position of EU27.   After five votes over eight days, there are now two candidates – Boris Johnson and Jeremy Hunt – who will campaign over the next four weeks; the final campaign event is scheduled for July 17.  In the final round, Boris Johnson won 160 votes, followed by Jeremy Hunt with 77 votes.  Michael Gove received 75 votes.  With the first of the two phases of the leadership contest completed, the two candidates now seek support from among the members of the Conservative Party, the grassroots activists whose demographics (measured by age, ethnicity or gender) are very different from the country as a whole. 

Boris Johnson has said the UK will leave the EU on October 31, with or without a deal.  He is not supportive of suspending Parliament (known as prorogation, which flows not from statute but from the royal prerogative) to force a no-deal exit.  He believes he can reach agreement with the EU27 to replace the backstop with “alternative arrangements,” which likely is a reference to “maximum facilitation.”  No such arrangements have found support among the EU27.  He has said a deal remains “eminently feasible” by the deadline, and also maintains that the “otherwise defunct Withdrawal Agreement” can be “disaggregated,”  both of which statements are generating significant criticism.  Jeremy Hunt believes a new deal can be negotiated before October 31, and would accept leaving without a deal, though he concedes that could trigger a vote of no confidence.  The public positions have created a fair amount of confusion, and can be expected to evolve over the coming few weeks of the campaign. 

While the then six candidates (down from an original group of 10) were seeking support among Conservative MPs in the first phase of the leadership contest, an effort by Labour to undertake a procedural manoeuver intended to result in legislation that would effectively block the next Prime Minister from triggering a no-deal exit lost on a vote of 298 to 309 (with 8 Labour MPs (largely from pro-Leave constituencies) voting with the Conservatives, 13 abstaining and 10 Conservatives voting with Labour).  While a majority of MPs appear to oppose a no-deal exit, and had voted in the past in a non-binding motion to oppose a no-deal exit, the Labour effort, had it succeeded, would have embedded the principle in legislation. 

Whoever becomes Prime Minister will need to deal with the math, starting with the hung Parliament.  Throughout this process, there has been an ever-shifting set of alliances that defy easy categorization.  Brexit has been delayed not because of an overwhelming level of support for revocation of Article 50, but rather because a coalition of hard Brexit supporters (in the ERG and the DUP) and Conservative Remainers continued to vote against the Withdrawal Agreement and lined up against the Withdrawal Agreement Bill.  Both Theresa May and Jeremy Corbyn were confronted with significant opposition within their own parties, compounding the challenges the two leaders faced in finding a compromise.  The situation has been complicated by the level of support for Nigel Farage’s Brexit Party in the May MEP elections and in opinion polls since then.  The success of the Brexit Party at the expense of the Conservatives has caused a shift to the right for many MPs. This shift incidentally is at odds with the historical support for the Tories from business, which continues to crave certainty and in large numbers opposes a no-deal exit.  In this polarized environment, it is difficult to see how any leader can accommodate both hardline Brexiters and those who support either a soft Brexit or no Brexit.    

That difficult math may be critical to the outcome of the next phase, as many will have their eyes on what comes next – that is, who is most likely to prevail against Labour in a general election.   The thinking appears to be that the next Prime Minister will be no better able than Theresa May to get a deal through Parliament, and it is generally believed that Parliament will not accept a no-deal exit.  If there is no majority in Parliament for a second referendum, that leaves a general election.  The winner may seek a broader electoral mandate, presumably by winning back Conservative voters who voted for the Brexit Party in the MEP elections, or a small group of Conservative MPs (perhaps a dozen, according to recent reports) concerned about the consequences of a no-deal exit could vote with Labour to bring down the government and force a new election if the government is headed for a no-deal exit. 

To recap, at this point, most of the all-too-familiar options remain on the table:  a no-deal exit has by no means been ruled out; many believe it is now more likely.  Parliament could still approve the Withdrawal Agreement (or some other deal that the EU27 is willing to agree to), the October 31 deadline could be extended by agreement of both sides or (though truly viewed as unlikely) the Article 50 notice could be revoked by the government.   A vote of no confidence also remains a possibility, but the question then is, to what end?  And, would there be enough time?  The new Prime Minister is expected to be announced on July 23, and Parliament is scheduled to begin its recess on July 25.   Some have wondered whether Speaker John Bercow could take action to halt a no-deal exit.  The recent decision of the Speaker to remain in his position prompted a number of articles on the question of whether, and if so how, a no-deal exit could be stopped by Parliament.  Finally, there is the possibility of a second referendum, though that too seems to be a remote alternative. 

While the uncertainty continues on the British side, so too is there uncertainty on the part of the EU27.  Would they agree (it takes a unanimous vote) to extend the Article 50 deadline once again, or are they willing to accept the consequences come what may at the end of October?  Would they make adjustments to the Political Declaration, as changes to the Withdrawal Agreement have been ruled out?  Are they willing, for example, to agree to a time limit on the backstop or to Boris Johnson’s alternative arrangements?  Presumably one cannot answer the question of what the EU27 will do until it becomes clear what the British are prepared to offer.  And that will not be known until the new Prime Minister is installed, and the rhetoric of the campaign gives way to facing the realities of the many moving pieces – realities that have precluded a solution for over two years.           

In addition to the expected announcement of the new Prime Minister on July 23 and the beginning of Parliament’s recess on July 25, other key upcoming dates include the Conservative Party annual conference that begins on September 29 and the European Council summit on October 17-18 (the last one before the October 31 deadline). 

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© 2019 Paul, Weiss, Rifkind, Wharton & Garrison LLP

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