Johnson has defined Brexit. Now it is for the opposition parties to defeat it

21 Oct

phil syrpisOnly if the opposition parties accept that Boris Johnson has now defined Brexit can it unite to defeat his deal, writes Phil Syrpis (University of Bristol). Trying to redefine the terms of the deal will exasperate the public and probably end in failure. The path to remain lies in a second referendum or general election.

Super Saturday turned out to be a damp squib. Because the Letwin amendment was carried (by 322 votes to 306), the House of Commons did not vote either to approve or to reject PM Johnson’s new Brexit deal. Since the vote on Saturday, Johnson has, as he was required to do by the Benn Act, written a letter to the EU asking for an extension to the Article 50 period. He also made it clear to the European heads of state and government that, as far as he is concerned, there is no reason to grant the extension and every reason to expect that the UK will approve the new Withdrawal Agreement and be ready to leave the EU on 31 October.

boris johnson

Boris Johnson and his frontbench point to the Opposition benches during the State Opening of Parliament, October 2019. Photo: UK Parliament/ Jessica Taylor via a CC BY 3.0 licence

The events of the last few days pose serious questions for all the actors involved. The EU leaders have to decide how to respond to the extension request. The government has to decide how to take its Brexit plans forward; the passage of the Letwin amendment indicates that there cannot be a meaningful vote on the deal until the Withdrawal Agreement Bill (the ‘WAB’) has been published, debated and agreed. This post concentrates on the questions facing the Opposition, and in particular on whether they should accept that Johnson has succeeded not in delivering, but in defining Brexit.

The various opposition groups, when they passed the Benn Act, were able to unite so as to oppose a no-deal Brexit. They were also able to unite on Saturday: to insist on having the opportunity better to scrutinise both the new Agreement with the EU, and the WAB – the piece of UK legislation needed to give domestic legal effect to the Withdrawal Agreement, expected to contain a number of controversial provisions, relating for example to the relationship between UK and EU law during and after the transition period.

But – and this refrain is all too familiar, they have not been able to unite to agree an alternative to the Prime Minister’s new Brexit plan. The range of ‘Brexit solutions’ favoured by the Opposition is broad. The range of processes through which a Brexit solution may be reached – a general election, a government of national unity, a people’s vote – is also broad. To state the obvious, if they are going to stop Johnson’s plans, they are going to have to find a way to unite again.

The key development is that we now know that there is a concrete version of Brexit which the government and the Conservative party, from Ken Clarke, via Theresa May, to Mark Francois, is prepared to endorse. There are already many excellent analyses of the deal itself (see in particular this from Steve Peers). In brief, the deal envisages (for GB) a far harder form of Brexit than May’s Brexit deal, and bears no relation to the sort of Brexit the Labour party has indicated it would endorse. On the Irish border question, there is, of course, a fundamental choice (illustrated by Daniel Kelemen here). Brexit will end with the UK in the customs union and single market (at least for goods); or with a hard border across Ireland, or across the Irish Sea. May’s deal contained enough on customs and regulatory alignment to render both borders ‘de-dramatised’. Johnson’s deal opts for the Irish Sea border solution. It represents a hard Brexit for Britain, with special status for Northern Ireland. If the deal passes it is likely to cause significant damage to the UK, economically and politically (see, for example, this analysis). Its passage is also likely to herald a general election, in which Johnson will, no doubt, reap the benefit associated with delivering (whether or not by 31 October) on his promise to deliver Brexit.

Has Brexit now been defined?

It seems to me that the most important strategic question facing the Opposition is whether to accept (as the Conservative party has) that Brexit has been defined; or whether to continue to make the case for other, less economically and politically damaging, versions of Brexit. The decision to accept Johnson’s definition is likely to be especially difficult for those who harbour ambitions of a better Brexit. It leaves them facing a stark choice – Johnson’s Brexit or remain – both of which are, for them, distinctly sub-optimal outcomes. Nevertheless, it seems to me that there are two strong reasons why the Opposition should now accept that Johnson has succeeded in defining Brexit.

First, the public has (probably long ago) lost patience with the ongoing Brexit debate. There are strong demands to get it done, and, conversely, to get it gone. Johnson’s plea to ‘get Brexit over the line’ of course obscures the reality that his deal would usher in long and tortuous negotiations over the UK’s future relationship with the EU, but, and this is the point here, there is no doubt that the urgency of his message appeals to voters. An opposition seeking more time to negotiate a different version of Brexit (albeit one which would do more to ensure that the UK is aligned with the EU) is unlikely to find favour with an increasingly exasperated electorate.

Second, and perhaps more importantly, if the Opposition is to embark on the task of seeking to redefine Brexit, they are likely to disagree. Some will perhaps be prepared to endorse the deal, once it has been scrutinised properly, and once the terms of the WAB have been published, debated and agreed. Others will want a softer Brexit deal, either with a UK-wide backstop (as per Theresa May’s withdrawal agreement), or with a commitment to membership of the Customs Union or the Single Market, either in the political declaration or the WAB. Conversely, if they accept Johnson’s definition, they are likely to be able to unite in opposing (this concrete) Brexit. Moreover, once it is accepted that Johnson’s deal is Brexit, a path forward opens, enabling MPs to offer the people a democratic choice, whether via a general election or a people’s vote, between Johnson’s Brexit and remain.

The choreography of the next days will in large part be determined by the actions of the EU and the government. The arithmetic in the Commons gives the Opposition significant power, but only if they are able to act in a united way. Acceptance that Johnson’s deal represents Brexit – and that Brexit is therefore something which the Opposition can unite in opposing – may be what they need to do in order to be able to find a path to remain.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Phil Syrpis is Professor of EU Law at the University of Bristol Law School.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.