12 March 2019

Whether or not her Brexit deal passes, the Prime Minister is likely to need more time. Joe Owen looks at the options for an extension of Article 50.

The UK is set to leave the EU on 29 March, when the two-year Article 50 countdown ends. But will that really be the date we leave?

Even if the Prime Minister gets backing from Parliament for her deal, she’ll have just days to get through the legislation necessary to ratify the deal. If MPs demand a different deal, there will simply not be time to negotiate it.

Meanwhile, European Commission President Jean Claude Juncker has shown EU member states are now ready and waiting for a request from the Brits to extend Article 50.

If an extension is inevitable, the coming days will decide the crucial question “for how long?” But the Prime Minister will also need to answer the question “for what?”

A few more weeks to ratify the Prime Minister’s deal

If the Prime Minister gets her deal through before 29 March, she will still need to pass the Withdrawal Agreement Bill, which is unlikely to whistle through Parliament unopposed.

The legislation required to implement Maastricht Treaty took over 40 parliamentary sitting days. The Treaty of Lisbon took 25 days. The Government has only two sitting weeks left to pass the Withdrawal Agreement Bill.  

But the Prime Minister could ask for a few weeks extension to just get an approved deal onto the UK statute book, without pressurising Parliament to do everything with unseemly haste. The EU, if it meant ratifying the deal as it stands, would almost certainly have no issue in agreeing to such an extension.

A couple more months to tweak the Brexit deal or prepare for no deal

This short three-week extension is not enough time to do anything more than finalise ratification. Any further tweaks to the deal would require a longer extension.

There’s a problem, though – the European Parliament elections are taking place between 23–26 May. Juncker confirmed that any extension that goes beyond those dates would require the UK to elect MEPs (the EU are guarding against the UK continuing to extend and ending up unrepresented in the European Parliament).

In the UK, the prospect of organising and running European elections (with the potential for political point-scoring) during an extension, is likely to be sufficiently painful to encourage the Government to avoid it as far as possible.

An extension until the end of May could in theory allow the two sides to reopen elements of the deal. But the EU has stood firm for the last two months; it could quite easily do the same for two more. The UK might have more luck if it wanted to redraft the Political Declaration, but that is only likely to win over some Labour and Tory backbenchers – it won’t crack the DUP/ERG nut.

If the Prime Minister wanted to win back those MPs, she might need to commit to spend the extra two months getting the house (or border) ready for a no deal Brexit. It is possible that the EU might want to have the breathing space to do the same – its appetite for more clarifications and tweaks may be running out.

A significantly longer extension to discuss the future relationship

The EU looks less than keen on conceding an extension which simply means months more of arguing about the backstop. Some EU members seem to think the deadlock in London would need longer to sort out.

Any extension to reopen the Withdrawal Agreement would likely take the date of Brexit beyond the summer, possibly beyond 2019.

The UK would need to organise European Parliament elections, but in return might get an opportunity to try and address some of the more fundamental concerns in Westminster. And a long extension could open space for public consultation, as suggested by some former Prime Ministers such as Gordon Brown and John Major.

The extra time could also allow for negotiations on the future relationship – or, at least, to come up with a much more detailed version of the Political Declaration. It could require an extension that comes close in length to the planned 21-month transition, but the UK could prove the backstop is not necessary and assure MPs worried that they are being asked to vote for a ‘blind Brexit’.

But the political consequences of a long delay could be significant – possibly fatal – for the Prime Minister.

The Government’s revealed preference has been to kick the can down the road whenever possible. With just days left, it looks like a matter of time before the Prime Minister asks for a bit more road.

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Comments

Even if Theresa May can get a majority for her deal next week, there must be growing apprehension among Heads of Government that (1) she will have difficulty with subsequent legislation and (2) she will be gone before long

The fact that she only won approval in principle for asking for an extension on Thursday with Labour votes (188 Cons voted against) is ominous. Peel got the Repeal of the Corn Laws through with Whig and Radical votes and then fell on Maynooth when they did not vote with him.

Even if she survives a confidence vote (not guaranteed with various Conservative MPs threatening to pull her down as their predecessors pulled down Peel) the barrier to a fresh Conservative leadership vote is only the rules of the 1922 Committee, not the constitution of the Conservative Party so if a majority of MPs want a change they can change the rules and then have a vote.

The visible cowardice of many MPs before their Association meetings and continuing popularity of de Pfeffel Johnson with the membership suggests he will get the leadership. TIG will think Christmas has come early as a number of those MPs who have said they would walk out if he becomes leader do have backbones. Even with the DUP, the government's majority will be gone.

One outcome of an election could be a Conservative majority with the people the Brexiteers love to call traitors purged. Corbyn has done so much damage to Labour that that is possible.

Another outcome is chaos. I judge this more likely. TIG plus LD could well get up to 40 or even 50 - LD was 57 in 2010. It is hard to see SNP dropping below 25, and polls suggest they might marginally increase their current 35 (SNP was only 6 in 2010) Ironically de Pfeffel Johnson could be a casualty of London's commitment to Remain - the first Conservative leader since Balfour to lose his seat at a general election.

Even if Labour did get a narrow majority, or the Conservatives collapsed (which 1997 suggests they should but the polls suggest the contrary) would this produce a stable majority for a Corbyn government? I doubt it. And if there were a Corbyn majority, what would it do to take us through the next stage of Brexit?

It is of course possible that out of initial chaos a Government of National Unity could emerge that could last most of a parliament. But the only precedent in peace time is that National Government of 1931.

I appreciate that nobody in the EU wants a No Deal exit. But they must realise that British political system has broken down. Does anyone really want two years more of chaos? Is it not possible that somebody (and it only needs one Head of Government) will say "No extension. Enough. The British can choose - get out now or revoke the notification and stay in."

This might save Theresa May. She has recognised the need to choose. If she choose revocation her cabinet would break up and many - probably most - of her MPs abandon her. But she would be in Downing Street and could try to re-constitute her government.

One consequence of Corbyn is that Labour MPs are examining their consciences. It is perhaps worth noting that when Macdonald's cabinet disintegrated in 1931 and King George V convened a conference at which he told the assembled politicians "Stop buggering my people about" Macdonald was the only party leader present - Neville Chamberlain represented the absent Baldwin (and Herbert Samuel LLoyd George). Baldwin was not pleased with Chamberlain's accepting the formation for a national government under Macdonald - but he was not willing to face down the King. What, we might ask, would Tom Watson do if asked to join a National Government? What would Yvette Cooper do? What would Hilary Benn do? What would that exceptional group of female Labour MPs who so clearly have principles and know their own minds do? Theresa May might well find herself Prime Minister with a rather more coherent cabinet. It is hard to think of a single Labour or Liberal MP who does not warmly agree with her analysis of burning injustices. Such a cabinet would not disagree on goals although like every other cabinet in history it would doubtless argue over means.

There is only one lawful purpose for extending the Exit Date - it is in the Act. Section 20(4) - "A Minister of the Crown may by regulations .... amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom."
So why are you asking "for what"? There is only one legitimate purpose for an Amendment to the Exit Date set by the Act.