EU leaders have agreed to give the UK a maximum extension of Article 50 to 31 October 2019.
If the UK fails to hold EU Parliament elections on 23 May, the extension will end on 1 June with a no deal Brexit. If Parliament ratifies the Withdrawal Agreement, the extension can end before the October deadline. But if neither of those things happen, the UK may find itself asking for more time in October – although there are no guarantees that there will be unanimity for a further extension.
Donald Tusk, the President of the European Council, has urged the UK Government to use the six-month Brexit extension wisely – “please do not waste this time” he said after agreement to prolong the Article 50 period was reached at the European Council on 10 April. But with huge political obstacles to navigate, the Prime Minister – or her successor – could arrive at the European Council meeting in October with very little to report on the substance of Brexit.
For while the six-month extension to the Article 50 timetable appears to allow the UK a significant amount of time to decide what Brexit outcome it wants, in practice that timetable is much more constrained than it looks.
The Prime Minister’s key objective: ratifying the Withdrawal Agreement
The Government’s preferred scenario is to get the UK out of the EU with a deal before European Parliament elections or, failing that, ahead of the 31 October deadline.
To achieve that, UK law says that the Government must get approval for the deal through a meaningful vote, pass primary legislation – the Withdrawal Agreement Bill – and then formally ratify the deal in Parliament under existing treaty ratification processes set out in the Constitutional Reform and Governance Act (which gives Parliament 21 days to reject the treaty).
Given the difficulty the Government has experienced in getting Parliament to support a meaningful vote, one way to shorten this process would be to focus on passing the Withdrawal Agreement Bill and use that legislation to specify that a meaningful vote would not need to take place for this treaty to be ratified.
The Government could bring the bill forward as early as 24 April, or it could wait until after the local elections on 2 May.
Even if the bill was introduced on 24 April, however, precedents suggest there is unlikely to be enough time to pass it before the European Parliament elections. There would be just 16 parliamentary sitting days until 23 May. The legislation implementing the Lisbon Treaty, passed when the Government had a significant majority, took 25 sitting days. This bill is likely to be much more contentious and the potential for amendment in the Commons is significant. Previous laws implementing EU treaties have been subject to more than 100 votes during their passage. The Government cannot control timetabling in the House of Lords, and Labour, Liberal Democrat and crossbench peers may resist demands to rush through this significant piece of legislation.
The Prime Minister is yet to secure a majority for her deal in principle, so the likelihood of her being able to pass this legislation – and to do so very quickly – is small.
So, given that she is unlikely to avoid the UK taking part in the European Parliament elections, it appears that the maximum extension – a further six months – will be needed to break the Brexit impasse.
There are, however, a number of possible constraints on that time.
Constraint 1 – Time already lost: parliamentary recess, local elections and European Parliament elections
The extension falls over the summer and there are two elections scheduled for May. That will see around half of the available time constrained or lost due to restrictions on government activities or Parliament not sitting.
Parliamentary recess: The exact date and lengths of recesses will be determined when the new parliamentary session begins but, based on past sessions, there would normally be three more recesses before the October deadline. These could be:
- Whitsun recess: one week
- Summer recess: six weeks
- Party conference recess: four weeks.
Local elections: These take place on 2 May, which means that restrictions on government activities – limiting significant new policies announcements or appointments – have already begun (three weeks beforehand) and parties will be spending some time campaigning.
European Parliament elections: Polling is scheduled for 23 May. Unless the Government has succeeded in completing ratification of the Withdrawal Agreement, then these elections will have to take place if the UK wants to extend Article 50 beyond 31 May. Like the local elections, there would be restrictions on relevant government activity for a three-week period in the run up.
Potential time lost: more than 11 weeks
Constraint 2 – The end of the parliamentary session
The annual parliamentary session would normally be expected to end in May, but there has been no announcement about the planned end date for this unusual two-year session. The end of the parliamentary session is brought about by the Prime Minister asking the Queen to prorogue Parliament, a temporary suspension of activity which usually lasts for around a week.
At the end of a session, all legislation that has not already passed and can’t be rapidly finalised in the so-called ‘wash up’ with the agreement of the Opposition, must either be carried over (if approved by MPs) or is lost. Any bill that has passed report stage in the House of Commons cannot be carried over – the Trade Bill is an example of key Brexit legislation that will be lost if it is not passed before the end of the session. Although the Agriculture, Fisheries and Immigration Bills all could be carried over as they are yet to reach report stage in the Commons.
A new parliamentary session would bring a risk to the Government, as securing agreement on the Queen’s Speech – which sets out the Government’s legislative agenda – would need the support of the Democratic Unionist Party, whose confidence and supply agreement is up for “review” at the end of the parliamentary session. But it also brings an opportunity: to bring back the Prime Minister’s deal in its existing form, getting around the Speaker’s ruling on not asking Parliament the same question more than once in a single session.
Potential time lost: one week
Constraint 3 – Conservative Party leadership contest
The Prime Minister has already committed to standing down after phase one of Brexit, but there is a chance that she might step down before then if the Government thinks it cannot get the deal through Parliament. Due to the constraints of Conservative Party rules – which prevents a vote of no confidence in a leader for a year after they have won one – there is no formal party mechanism to force the Prime Minister to resign before December this year. But a number of prominent Conservative backbenchers are already calling for her to quit and are exploring mechanisms to force that decision.
If the Conservative Party is to run a full leadership contest, including voting by the membership, it could take two months – that’s how long it took to elect David Cameron as leader of the party in 2005.
However, a leadership election could be run much more rapidly, as it was in 2003 when the party rallied around a single candidate and Michael Howard was installed in just over a week.
A full process, with voting by the membership, would probably need to happen over summer recess to ensure a new leader would be in place by the Conservative Party Conference in early October. But that leader would then be left with little time to achieve progress on Brexit before the October European Council.
Potential time lost: two weeks – two months
Constraint 4 – A vote of no confidence and general election
The Official Opposition has already called a confidence vote in the Government once in the last year and has, at different points, suggested it would do so again.
If the Government were to lose this vote, it would trigger a 14-day process for a prospective government to get a vote of confidence passed. If a government cannot command the confidence of the House then a general election is called. That process would then take around six weeks.
Alternatively, the Government could decide that Parliament is incapable of passing a Brexit deal and choose to call an election - using the same process it did in 2017 when two-thirds of the Commons voted for an election. The hope would be that an election would return a larger majority for the Government and a new set of MPs would be able to vote through a deal in the autumn. That process could be done in around six weeks.
This would need to happen before summer recess or in September when Parliament returns. Either way, a new Prime Minister would have little time to achieve progress on Brexit before the October European Council. Whether the election brought a clearer way forward on Brexit would depend on the manifestos and the result.
Potential time lost: six – eight weeks
Constraint 5 – Another Brexit referendum
The Government, or Parliament, could decide to hold another Brexit referendum. Any referendum would require fresh legislation and the Electoral Commission would need to test the proposed question (a process it says ideally takes at least 10 weeks).
UK law says there must be a 10-week regulated period before polling day. If the October European Council were to see the UK and EU discuss next steps following a referendum, then the regulated period would need to begin in early August.
This means that highly contentious legislation would need to be introduced very soon to ensure that there is enough time for it to pass and for the Electoral Commission to test the question before summer recess.
Potential time taken: 16 weeks+
These options have been presented as alternatives but they could be used in combination. This would, however, absorb even more of the limited parliamentary time available. It is open to the Government to cancel recesses and party conferences to gain days that could not otherwise be used, but even then the next six months could pass without the UK being much nearer resolving its Brexit question.