Does Brexit still mean Brexit: making sense of the election

It was billed as the Brexit election: the most important election since the Second World War. We were supposed to be enlightened with details from each party about what kind of Brexit would be on offer. Jeremy Corbyn was supposed to be exposed as a radical leftist charlatan. Theresa May was supposed to consolidate her position and achieve a big election victory, giving her a strong hand in the Brexit negotiations. In the end, very little was said about Brexit; indeed neither of the parties offered many credible details of their plans for it, and Corbyn emerged looking almost Herculean next to the not-so-strong-or-stable May, who may or may not finish the year as Prime Minister. It hasn’t quite gone to plan.

With 649 of 650 seats declared, the Conservatives stand on 318 seats, 8 short of an overall majority. Opposition Labour stands on 261 seats, followed by the Scottish National Party on 35 and the Liberal Democrats on 12 seats: a hung parliament. Essentially it means that uncertainty will follow, though the Northern Irish Democratic Unionist Party (DUP) has kindly offered to be Kingmaker (Queenmaker?) in this scenario, thereby reducing the uncertainty somewhat.

Failure to win a majority means that Theresa May has failed in her quest to get a strong mandate for the Brexit negotiations; indeed she may not be in a position to lead those negotiations at all, at least not in the medium- or long-term. The Conservatives’ reputation for ruthlessness with leaders tainted by failure points to an almost inevitable short second stint as Prime Minister for Mrs May.

With Theresa May having already triggered Article 50 the clock is ticking towards the UK leaving the EU at the end of March 2019. Seven weeks were lost for the election campaign; more time could be lost from assembling a reshuffled cabinet and finalising the arrangements with the DUP. There is plenty to negotiate between now and March 2019 and so calling the election after triggering Article 50, knowing there was a strict two-year negotiation period, was incredibly risky.

The European Union set out its proposed timetable and expects to begin the negotiations with the new government in just 10 days’ time. As unlikely as that timetable seemed, Theresa May has confirmed that she will attend those talks on 19 June.

What those Brexit talks will now look like is less clear than it was two days ago.

So what happens next?

Theresa May will remain as Prime Minister, having agreed a ‘confidence and supply’ arrangement with the Democratic Unionist Party, whereby their 10 ministers offer support to a minority Conservative government on a vote-by-vote basis.

If May does seek to push ahead with her manifesto pledges on Brexit, it is likely that she would need the votes of other parties who have largely rejected her hard Brexit plans. Despite the lack of detail in the Labour manifesto, their priorities for Brexit – jobs and the economy – do contrast with the Conservatives’ less pragmatic approach that called for withdrawal of the single market, customs union and jurisdiction of Court of Justice of the European Union (CJEU). In order to implement Brexit, the new government will probably need cross-party support to get one of the most complex and divisive legislative programmes through two chambers of Parliament. Even if Theresa May could reach the point where she successfully passes the myriad laws needed before Brexit, and then agrees a deal with an EU in a far stronger bargaining position, a final settlement would have to be put to a vote in a House of Commons with no united position.

In an effort to retain some stability – or at least the perception of it, however compelling that may be – Theresa May will remain as Prime Minister and leader of the Conservative party as she begins the negotiations. Indeed she may enter into the negotiations as Prime Minister merely to ensure that the negotiations actually begin. Once the negotiations are underway, she could then step down (or be pushed) and call another general election, and a Conservative leadership race. Given that Germany is due to hold Federal elections in September, Theresa May could see an opportunity to minimise disruption to the negotiations and call a UK general election at a similar time. Such a timetable would come with risks depending on whether the negotiations up to that point had been amicable. Given the EU’s insistence on discussing the rather large financial settlement first – a source of dispute for the UK – and the risk that this could lead to an early walk-out, it is not inconceivable to imagine bitter, acrimonious rhetoric being dialled up for German and UK election audiences, which could further jeopardise the negotiations.

Of course there is uncertainty as to whether there would be public appetite for another election. The feeling in Parliament could be mixed, however. The Labour party is likely to be emboldened and, looking to build on their success, could seek to undermine the Conservatives, particularly if Theresa May’s position within her party becomes weak to the point of being untenable. A stumbling block to all of this is the fact that the Fixed Term Parliaments Act is still law and so a two-thirds majority of Parliament would be needed to force another election, which may not be easily achieved, if at all.

The EU’s position is likely to be largely unchanged by the outcome of the election, though they will not be immune to any uncertainty caused. The biggest concern will be any delay in forming a stable government. The EU has accepted the will of the British people and began preparing for Brexit as soon as the referendum result was declared; they are keen to start the talks as soon as the UK is ready. However what those negotiations might entail now becomes slightly murky. A minority government places doubt on the UK’s initial negotiating position. Will membership of the single market be back on the table? Will freedom of movement? Will acceptance of the CJEU’s jurisdiction? Given that a minority government will probably need to compromise on these and other issues to gain Parliamentary support, serious reconsideration of the government’s Brexit position must surely be undertaken.

Another source of uncertainty for the EU will be around who will be sitting on the opposite side of the negotiating table. Though Theresa May will continue as Prime Minister, will she remain in that position for the duration of the next Parliamentary session? Will the session last a full 5 years? It is not inconceivable that May will resign and/or call another general election later in the year, potentially resulting in a completely new government with a completely new Brexit position. If the EU believes another UK election is forthcoming they may be unwilling to start detailed technical negotiations at all, though this seems unlikely at this stage.

On the issue of who represents the UK, Theresa May will face political obstacles from both the Remain and Leave camps in her party. Those on the Remain side may see the election result as a rejection of her hard Brexit plan and may demand concessions and compromise; the Eurosceptic wing of the Conservative party could see it as one final chance to ensure that Brexit is achieved. Theresa May could find it incredibly difficult to keep on board the hard Brexiters in her party if, as expected, she makes concessions they cannot accept. A confidence and supply arrangement with the DUP provides the Conservatives with slightly more support for its Brexit stance, though a tiny majority in Parliament ensures nothing will be easy. Arlene Foster, who heads the DUP, has said she wants to avoid a hard border with the Republic of Ireland and doesn’t want the hard Brexit that has been spoken of by Theresa May. However both the Conservative and DUP manifestos promised to maintain the Common Travel Area and as frictionless a border as possible between Northern Ireland and the Republic of Ireland, so there is definitely some scope for agreement.

In the event of another election, while the Conservative party could be hamstrung by infighting over what kind of position to take on Brexit, the Labour party could campaign on a more detailed, softer Brexit promising to remain in the single market and the customs union, possibly making common cause with the pro-European Liberal Democrats. Of course, the opposite is equally likely, and Labour could argue that only by embracing Brexit was it able to achieve the successes it has done in this election, and so maintain its current ‘Conservative-lite’ Brexit position and call for an end to freedom of movement and withdrawal from the single market.

Theresa May has confirmed that she will attend talks with the EU on 19 June. However even if she retains support for her position throughout the negotiations, the enormousness of the task, which doesn’t seem to have been accepted by many in Parliament, could give the negotiations a Sisyphean feel. Whatever happens, the two year period for negotiations has begun and we’re already nearly three months in. Should the government require an extension to those talks, a request must be made to the EU. A formal EU decision would be needed to pause the Brexit clock, which wouldn’t easily be granted. Indeed it could require the UK to put itself in a much weaker negotiating position than it had even before the election. Whether or not Article 50 could be revoked, unilaterally or not, is unclear – there is no mention of revocability in the Article. Unilateral revocability is such a sensitive political, as well a legal, issue that it would be an almost impossible option for the UK.

It could be in the interests of the EU to provide the UK with an extension on the negotiation timetable given that member states are affected by the uncertainty of Brexit. However the EU will be keen to retain its strong negotiating position and accepting that the EU needs a stable UK could weaken that position. Indeed Donald Tusk indicated that there is little appetite for an extension of the Article 50 period when on the morning of the election result he tweeted: “We don’t know when Brexit talks start. We know when they must end. Do your best to avoid a “no deal” as result of “no negotiations”.”

The kind of deal that could be reached, whilst never really clear, is still far from certain. The chances of a disorderly Brexit culminating in the UK crashing out of the EU with no deal are still high, if not higher as a result of the election. Political impasse could endure throughout the Article 50 period, leaving the UK with no consensus for a final deal.

In the event of a disorderly Brexit, one possible solution for the UK could be a Norway-style EEA arrangement, whereby the UK remains a member of the single market, must accept the EU’s four freedoms and must remain subject to a large bulk of EU law. Obviously this wouldn’t meet the stated objectives of the UK but may just work as a transitional arrangement. There would then be the small matter of selling that to the British public, though by that point, economic indicators could have worsened to such a degree that the British appetite for a hard Brexit, or even a ‘no deal’ scenario may have significantly decreased. British opinion on this could of course be dependent on how the UK government of the day would have sold the breakdown in talks to them: if they accept their shortcomings and honestly speak of the dangers of a bad, or indeed no deal, then the public may accept whatever most common sense option is presented. If, and this wouldn’t necessarily be unlikely, anti-EU rhetoric is dialled up, not least by elements of the press, and the perception is that the UK is being held hostage by the EU, then the government may find it difficult – or even impossible – to persuade the public to accept a transitional deal, especially if that government wishes to seek reelection at any point. In any event, finding agreement will not prove to be an easy task.

Should there be no consensus on key issues surrounding the negotiations the decision may even be thrown back to the voters, either through a second referendum or a repeat election. Neither of these options would make for a less complicated and messy Brexit.

Whatever happens, it seems we may hope for a smarter Brexit – more consensus, more compromise and, hopefully, fewer empty slogans. Then again, we could be on the path to discovering whether no deal is better than a bad deal.