Brexit Fools’ Day

March 29 was meant to be Brexit Day, marking the UK’s departure from the EU. Instead, it was yet another day of Brexit high drama as Prime Minister Theresa May’s Brexit deal was voted down for a third time, leaving the possibility of (i) the UK leaving the EU on April 12 in a “no deal” scenario or (ii) the EU granting a long Brexit delay (with conditions attached).[1]

Third Time Unlucky. In a turn of events that treaded that delicate line between tragedy and comedy:

  • DUP: The DUP (Northern Ireland’s Democratic Unionist Party) voted against the proposed Brexit deal due to ongoing concerns that the backstop (i.e. avoidance of a hard border between the Republic of Ireland and Northern Ireland) could result in different rules applying to Northern Ireland and the rest of the United Kingdom. However, in doing so, the DUP did not escape the backstop dilemma as the EU could still impose a similar backstop proposal in the event of a “no deal” or a lengthy delay.
  • Pro-Brexit Conservatives: Certain Brexiteers also voted against the deal, hoping to usher in a “no deal” scenario on April 12. However, that scenario is by no means certain — avoiding “no deal” has been one of the few Brexit positions to consistently command a majority in Parliament and, crucially, it would require the EU to refuse to grant a Brexit extension. The irony for pro-Brexit Conservatives is that, in seeking to take a stand against the EU, they have essentially delegated an important Brexit decision to the EU and now risk a lengthy delay or a softer Brexit.
  • Remainers: Members of Parliament who prefer to remain in the EU also voted against the deal. Some argued they wanted a softer Brexit. Others hoped they could force a lengthy delay (perhaps prompting a general election or another Brexit referendum). But there is also some twisted irony here – by voting against the deal, Remainers have kept the possibility of a “no deal” Brexit alive. They have also risked the wrath of their constituents in the event of a Brexit delay, as a number of Remainer Labour and Conservative MPs represent areas that voted overwhelmingly to leave the EU.

Indicative Votes: Last week also saw MPs try to wrest control of the Brexit process from Theresa May’s government but, despite voting on a number of possible Brexit options, there was no clear majority for any option. Today will see an additional vote on possible Brexit options – which could include whether to (i) remain in the Customs Union with the EU (i.e. maintain a common trade policy and external tariffs), (ii) join Norway, Iceland, and Liechtenstein as non-EU members of the EU’s Single Market, or (iii) hold a referendum for public confirmation on the proposed Brexit deal. Even if a majority voted in favour of any of these options, though, the EU would still have to approve. Michel Barnier, the EU’s chief negotiator on Brexit, has suggested that the EU is open to a Customs Union with the UK, but it remains unclear whether the EU would be similarly amenable to any other options to be voted on by Parliament today.

EU Decision – Delay or No Deal?: The current default position is that the UK will leave the EU on April 12 (the deadline for the UK to decide whether to hold EU Parliamentary elections). However, the European Council has called an emergency summit for April 10 to discuss any further UK Brexit proposals, including a likely request for a lengthy extension. While the conventional wisdom is that EU Member States also wish to avoid a “no deal” scenario, French President Emmanuel Macron is supposedly edging towards supporting a “no deal”, especially if the request for delay lacks a clear mandate from the UK.

More Delays, More Uncertainty: It is unknown what the UK’s proposal to the EU will be in requesting a delay. But any lengthy Brexit delay leads to more uncertainty – especially given whispers about a possible UK General Election. This could involve Theresa May running on her “Brexit deal” platform (although it is unclear whether this is realistic given her promise last week to step down if the Brexit deal was voted through), another Conservative leader supporting a “hard Brexit,” or a  Labour party victory (and it is unclear what its official Brexit position is – a softer Brexit or a second referendum). It is also unclear how the EU would react to a UK General Election given this is likely to prolong the Brexit process.

Unintended consequences? With pro-Brexit MPs voting against a deal that would see them leave the EU (potentially jeopardizing any sort of Brexit, delaying Brexit, or getting a softer Brexit) and pro-EU MPs voting against a deal (potentially ushering in a “no deal,” which they desperately want to avoid), there is a risk that Brexit is descending into a farce beyond anything that Monty Python could parody. But perhaps the joke is on anyone trying to predict what happens next in the “Life of Brexit”.


[1] The Brexit deal consists of a Withdrawal Agreement (providing for a two-year transition period, financial settlement between the UK and EU, and the Irish backstop) and Political Declaration (setting out guidelines for a future relationship between the UK and EU). Only the Withdrawal Agreement was the subject of Friday’s vote in order to meet a condition imposed by the speaker of the House of Commons that such a vote could only be held if there were substantial changes to the Brexit deal.

This post comes to us from Amy Hutchings, an English solicitor and LL.M. candidate at Columbia Law School. She previously worked as a mergers & acquisitions associate at Slaughter and May in London and as a foreign legal consultant in the M&A group at White & Case in New York.