Prime Minister Boris Johnson has promised to take the UK out of the EU on 31 October. However, the ‘Benn Act’ requires the prime minister to ask for an extension to the Article 50 negotiating period if MPs haven’t approved a deal or no deal by 19 October.
The parliamentary opposition to a no-deal Brexit means agreeing some form of deal with the EU is Johnson’s best bet for fulfilling his promise, but passing a ‘meaningful vote’ (something Theresa May failed to do three times) would only be the first part of the process. MPs would also need to pass the implementing legislation – the Withdrawal Agreement Bill – before a deal could be ratified. And that will involve big challenges.
Parliament is sitting again following the Supreme Court ruling. The European Council is set for 17 and 18 October, and the Benn Act makes 19 October the deadline for MPs to approve a deal – and, therefore, for Johnson to avoid the need to ask for an extension. This timetable is very tight.
All MPs will be trying to achieve their preferred outcome. The Labour frontbench will want to oppose any deal and ensure that Johnson requests an extension which creates enough time for a general election campaign.
Other MPs – including some Labour MPs and some of those former Conservative MPs who had the whip removed in September for supporting the Benn Act – will want to vote for any deal that the government brings back.
Pro-no deal MPs, meanwhile, could try and ‘game’ the Benn Act by voting for the meaningful vote – which would remove the requirement for Johnson to ask for an extension – but against the Withdrawal Agreement Bill. This would prevent the government from ratifying a deal and is a strategy which could lead to no deal on 31 October.
If Johnson does get a deal approved by 19 October, then that would leave just 12 days to pass the Withdrawal Agreement Bill (just eight scheduled sitting days). When civil servants drafted this legislation, months ago, it reflected Theresa May’s deal. The prime minister’s new arrangements for Northern Ireland will likely require substantial additional (and complicated) drafting.
Once the legislation is ready, it will need to pass through the Commons and the Lords. It is possible for bills to be passed quickly – the government can programme time in the House of Commons and the Lords are unlikely to hold up the passage of a bill if it has been approved by the Commons – but the timetable will be constrained. This will hugely limit Parliament’s ability to properly scrutinise the legislation.
Over the course of a year, the Commons and Lords collectively spent over 272 hours scrutinising the EU Withdrawal Act – which provided for the UK to transfer EU legislation into UK law. They will have much less time for the Withdrawal Agreement Bill, which will be complex and contain many more controversial provisions.
Johnson may be able to scrape together the numbers to pass the meaningful vote, but getting the Withdrawal Agreement Bill through the Houses of Parliament will require a stable majority which supports the government in multiple votes. The bill will need to pass second and third reading, as well as see off amendments tabled by the opposition and backbenchers. Previous parliamentary votes on EU-related legislation give an indication of the scale of the challenge: there were 88 divisions during the passage of the legislation needed to implement the Treaty of Lisbon and 122 during the passage of the bill implementing the Maastricht Treaty.
MPs are yet to see a Withdrawal Agreement Bill, and the government risks losing support in the Commons once the legislation is published. For example, the bill will need to allow for EU law to continue to apply during transition. This is likely to upset some backbenchers: if the government relies on pro-no deal MPs for the meaningful vote, then it may need to look elsewhere for support if it is to get a bill through Parliament. Other MPs may table amendments to reflect some of the offers which Theresa May made on social and environmental protection, or which attempt to curb the government’s freedom in negotiating the long-term relationship with the EU.
The prime minister needs to agree a Brexit deal with the EU and then secure a parliamentary majority for that deal. But even that won’t rule out a no-deal Brexit on 31 October. If he does get a deal, then passing a meaningful vote will be his immediate test – but ensuring that deal is put into law could yet end up being his biggest parliamentary challenge.