Two weeks ago, the British Parliament dealt Conservative Prime Minister Boris Johnson a dramatic defeat. A coalition of opposition and 21 rebel Conservative Party Ministers of Parliament (MPs) voted to tie his hands in his negotiation with the European Union over Britain’s planned exit. By a 327-301 margin, Parliament voted to forbid the prime minister from taking Britain out of the European Union (EU) without an exit agreement. It also directed him to seek yet another extension in the time allowed to negotiate such a pact.
In response, Johnson has refused to seek an extension beyond the current Oct. 31 deadline, saying he “would rather die in a ditch.” Instead, he has called for an election to settle the issue. But now, with Labour Party MPs strategically abstaining, Parliament has refused to furnish the two-thirds majority vote needed to trigger an early election.
All this seems to have confronted Johnson with an intractable dilemma: He has a responsibility, arguably a legal responsibility, to deliver Brexit to the majority of the British electorate who voted to leave. But he cannot do so without, apparently, breaking the law. Nor will the Labour Party agree to an election to resolve this impasse.
Although these votes appear to have placed Johnson an impossible position, there is a way to accomplish Brexit and to force — and win — an election. To secure these goals, however, he must abandon any further attempts to secure an extension or an exit deal with the European Union. Instead, he should immediately offer the European Council of Ministers a different kind of deal, a free trade and mutual residency deal. If the council refuses to accept his offer, he should make clear he will allow the clock to run out and the United Kingdom to leave the EU on Oct. 31 — initially, at least, without a deal.
To justify these bold moves and the political crisis they will temporarily create, he must take his case to the voters. For starters, he should explain the impossible position the current Parliament has put him in. But he should also explain how the previous Conservative government conceded a flawed premise and badly misjudged the strength of its position in its negotiation with the EU.
Specifically, he needs to explain why Britain should not have sought, and will soon no longer be legally required to seek, a separate exit deal. He should then explain that the deal Britain should seek is a free trade and mutual residency deal and that his willingness to accept a no-deal exit is the best way to secure such a deal.
Theresa May’s Deal Was Bad For Britain
In March 2017, Theresa May’s government and Parliament made a fateful decision. Parliament voted to trigger Article 50 of the European Union treaty, signaling Britain’s decision to leave the EU within two years. Clause 1 of that section of the treaty affirms that member countries may decide to leave the European Union unilaterally “in accordance with their own constitutional requirements.”
Yet the fine print complicates that process. Clause 2 requires a leaving nation to negotiate an exit deal with the European Council of Ministers within a two-year period, only after which time can a nation leave without a mutually agreed deal. By triggering the mechanism to leave, the May government subjected itself to the whims and priorities of the European Commission in the negotiation.
Nevertheless, May dutifully played by European Union rules and tried to negotiate Britain’s way out. That proved to be a mistake. The European Commission, long principally concerned with promoting greater European political integration, did not agree to reasonable terms of separation. Nor did May herself, a longtime “remain” advocate, press for such terms.
Instead, the deal May brought back to Parliament required the U.K. to pay £39 billion for the privilege of leaving. Astonishingly, however, it made no provisions for tariff-free trade between the continent and the U.K. She also accepted continued U.K. compliance with a swath of EU social and customs regulations, ostensibly to prevent re-establishing a hard-militarized border between the Republic of Ireland and Northern Ireland, even though no such border between the two had ever existed.
The May deal left Britain worse off than before. The deal left Britain subject to EU regulation but without representation in the European Commission, Council of Ministers, or European Parliament. Not surprisingly, a revolt of Brexiteers in her own party ensured that the British Parliament would reject her deal three times, leading to the current impasse.
Johnson Must Implement a Plan of Action
In 2016 or 2017, Britain, as a sovereign nation, could have circumvented this process by simply withdrawing from the 2009 Treaty of the European Union. Britain has done the same with more than 50 other international treaties since 1988. In any case, the coming Oct. 31 deadline ending the agreed extension of the negotiating period under Article 50 will eliminate any legal impediment to Britain leaving.
Johnson should explain this legal situation to voters and how the pseudo-problem of the Irish border was used to ensnare the U.K. in an indefinite membership in the European Customs Union. He should also explain why the country has no economic need for an exit deal. Already concluded “micro-deals” with the EU — covering visas, border checks, trucking, financial derivatives, air travel, and even Irish power generation — will minimize possible disruptions associated with a no-deal exit.
Johnson can also point out that May’s agreed exit payment can be put to much better use. Indeed, £39 billion would cover nearly 8 years of anticipated increases in funding to the British National Health Service.
Johnson should then announce that he will inform the European Commission and Council of Ministers that he will request no further extensions in the time allowed to negotiate an exit deal and will make no more attempts to seek such a deal. Nevertheless, he can explain, that does not mean there will be no deal at all. Instead, he should then offer the European people, through the Council of Ministers, a free trade and mutual residency deal.
This proposal need not be at all complicated. Johnson can offer mutual residency for European Union citizens living in Britain and for British citizens living in Europe for a period of time to be determined in the negotiation. Most importantly, he can also offer the council a new free trade deal but under the auspices of the World Trade Organization (WTO) rather than the Luxembourg Court of Justice.
Johnson can inform the council that if it rejects the offer, Britain will allow the imposition of tariffs under WTO rules and immediately seek free trade agreements with friendly non-EU countries, including the United States. He can also let the council know that if they refuse, he will take the U.K. out of the EU on Oct. 31, in spite of the domestic political opposition he now faces.
This plan of action will strengthen Britain’s negotiating position with respect to the European Union and, perhaps paradoxically, improve Johnson’s standing with the British electorate.
Europe Needs a Free Trade Deal
First, Britain’s negotiating position will be enhanced immeasurably when it repudiates the need for the EU to consent to an exit deal. Moreover, Europe needs the kind of free trade and mutual residency agreement Johnson could offer much more than Britain does.
Currently, nearly 3.5 million EU citizens live in the U.K., while only 1.2 million British people live in EU countries. Similarly, EU exporters sell far more goods and services to Britain than the reverse. If the U.K. left with no deal, EU exporters would have to pay £14 billion in tariffs per year to the U.K., while U.K. exporters would only pay £6 billion to the EU. What’s more, if Britain leaves without a deal, under WTO rules the British government could subsidize U.K. exporters for their tariff expenditures from the revenue the government would receive from EU exporters.
In addition, unlike May’s thrice-rejected deal, a free trade deal with Europe would eliminate any need for the so-called Irish backstop, since the backstop was only allegedly needed to harmonize trading practices between the two Irelands. More importantly, leaving without an exit deal gets the U.K. out of the EU Customs Union and, consequently, allows it to make other free trade agreements with non-EU countries including the United States, China, and India. That would give Johnson further leverage in any continuing negotiation with the EU.
This plan will also strengthen Johnson’s position in domestic politics, especially if he holds fast to his promise to refuse to seek another extension. By explaining why the U.K. has neither an economic nor a legal reason to seek an exit deal, he will render his refusal to seek an extension all the more justifiable.
Indeed, if there is no compelling need for an exit deal, it makes no sense for Parliament to force the prime minister to secure one. If the electorate understands this, it will support Johnson’s principled refusal and, consequently, his call for an election. That will put Labour under mounting pressure to provide the necessary votes to allow one.
Labour MPs will not want to risk alienating voters by refusing to support an election if it seems that growing public support for an election makes one increasingly likely. And an already strong plurality of British voters support Johnson’s call for an election. Further, any attempt to hold Johnson in contempt for refusing to implement Parliament’s recent mandate to seek an extension will only highlight the principled nature of his stand and lead to more calls for an election to resolve the crisis.
Johnson’s Dilemma: Break His Promise or Break the Law
Offering a different kind of deal to Europe will also enhance Johnson’s prospects of winning an election once one comes. Johnson is already 10 points ahead of Labour in the polls, and presenting a bold plan for resolving Brexit will only make him more popular.
A plan that repudiates the need for an exit deal will also satisfy Nigel Farage, the head of the newly formed Brexit Party. Farage has pledged to work with Johnson, but only if he commits to making Brexit happen. Current projections suggest Johnson’s parliamentary majority would increase from about 28, if Farage fields candidates, to 84 if Farage instead campaigns with Johnson.
If Johnson gets his election, he will also likely win with a parliamentary majority of pro-Brexit MPs, since Johnson has denied pro-remain Conservatives who voted to tie his hands the right to stand for election as Conservatives. If Johnson secures a pro-Brexit majority, he will not need to seek an exit deal. And that will enable him to walk away from a bad deal and to offer a good deal on trade and residency that EU leaders can reject, but only at their own political peril.
Indeed, once EU leaders know they cannot prevent Britain from leaving, they will be under pressure to head calls from European exporters — German car makers, Italian clothiers, French winemakers and farmers — to get a deal that gives them tariff-free access to the British market.
With Parliament adjourned, Johnson has five weeks to split the horns of his current dilemma. Either he must break his promise or break the law. Either he can implement the will of the people as expressed in the 2016 referendum (which, arguably has the force of law), or he can ignore the law that Parliament has passed preventing him from doing so.
Yet he cannot break the signature promise of his short tenure without losing political authority. Nor does he have any reasonable hope of wringing significant concessions out of Brussels. Continuing to seek an exit deal from EU leaders who have no intention nor incentive to budge is a fool’s errand. Thus, Johnson’s only real choice is to refuse to seek an exit deal with Brussels.
Johnson Has Some Explaining To Do
Nevertheless, if he just refuses to seek an extension or a modified exit deal, he will look like an unreasonable obscurantist and could face contempt charges and political backlash. But if he refuses and explains his refusal as part of a larger plan to resolve the crisis by delivering a Brexit that benefits both the U.K. and Europe, he can change the terms of debate.
Once he explains why the U.K. does not need an exit deal and instead offers a free trade deal to EU leaders that they will — at least, post-Brexit — be strongly incentivized to accept, the debate will no longer center on whether to leave with or without a deal, but instead on whether to accept a bad deal or press for a good one.
Johnson can even announce he is willing to face contempt charges if the opposition wants to precipitate a constitutional crisis. If they do, he can make a strong argument that he has just as much of a legal responsibility to implement previous parliamentary resolutions to leave and to fulfill the mandate of the Brexit referendum as he does to accept recent parliamentary restrictions on his bargaining power.
He can argue that contradictory parliamentary mandates cannot prevent him from executing the clear will — or respecting the higher authority — of the British people as expressed in the Brexit referendum. In any case, any attempt by the opposition to hold him in contempt or to pass a vote of no confidence will only make an election inevitable, precisely what Johnson wants.
Thus, by eschewing further attempts to get the European Commission to offer an exit deal on terms acceptable to Parliament, and by declaring rather than negotiating British independence, Johnson can cut the Gordian knot. If he simultaneously presents a positive proposal for free trade with Europe and a vision for a vibrant economy based on free trade with many other countries as well, he will reassure voters that Brexit can not only restore parliamentary democracy but expand prosperity.
If he does this, he will restore enthusiasm for Brexit and ensure that voters entrust him with a new majority to get the deal that Britain — and Europe — really need.