Brexit extension: What has happened and what does it mean?

If pictures say a thousand words, then this snap by the Bulgaria Permanent Representative to the EU might be the Encyclopaedia Britannica of last night’s European Council discussions on granting an extension to Article 50.

After the Prime Minister requested an extension to the end of June, the 27 other EU members began their intense discussions of what kind of extension was actually available to the UK. The outcome of those discussions for the most part puts paid to the risk of a No Deal Brexit on 29 March, but huge uncertainty still exists about what happens next week and in the months to come.

Council Outcomes

The outcomes of the summit last night create a three step process:

  • If the Prime Minister can pass the Withdrawal Agreement next week, then an extension until 22nd May will be granted in order to allow passage of the Implementation Bill.
  • If she fails to pass the deal, then an extension will be up until the 12 April.
  • The UK would then have until 12th April to indicate if they want a longer extension. Such an extension would be predicated on two things:
    • The UK confirming it will stand in the European Parliamentary Elections
    • The UK “indicating a way forward” to secure an outcome that can be agreed to by the EU.

This decision has now been formally approved (here).  However, the precise date of extension is now somewhat unclear as it is either a) 22nd May – if we pass agreement or b) 12 April if we fail to pass deal.

Therefore the 12 April extension can only be confirmed formally on Friday 29 March (i.e. the last day Parliament could pass the deal)

 

Extension mechanisms

There is a highly uncertain legal question about whether the Council approval for Article 50 is enough in its own right to ensure the UK stays in the EU post 29 March. Some legal experts say that extension automatically means we remain full members.

However, our membership is based on the European Communities Act (ECA), which is repealed on 29 March unless the “exit date” in the (Withdrawal) Act is changed. Without the ECA there is no legal mechanisms for the ongoing function of EU law in the UK, even if by dint of extension we remain members of the EU.

This situation would, to say the least, cause significant confusion about the statute book.

It is therefore very important that the Government changes the exit day in the Withdrawal Act. The Act already gives the power to do so via an affirmative Statutory Instrument (SI) if the date of Article 50 is changed.

However, there are now two possible new exit dates, and we won’t know which one applies until Friday.  The SI must be passed by Friday or the above disparity comes into play. This creates a bit of a chicken and egg situation – Government in theory can’t confirm the exit day until the end date of Article 50 is confirmed, but we can’t confirm the Article 50 end date until the date currently listed as the exit day!

There are a few options to get round this, including changing Exit Day to mean 12th April in the first instance, and then changing again to 22nd May if necessary, though this might prove tricky for MPs already upset to have to vote to delay Brexit.

An alternative option could be to table an SI with two definitions of exit day, with details of when each one would apply.

There is a further complication with actually getting the SI passed. As the SI is affirmative, it will need to be passed by both Houses of Parliament. The numbers in Parliament mean it would likely pass, but there remains a risk.

In the Commons the passage of the SI should be relatively simple. There is likely to be a row about whether the SI is debated in Committee or on the Floor of the House (we would anticipate it ending up on the floor of the House), but processes are designed to move fairly swiftly.

In the Lords things are more complicated. Under Standing Order 72 an affirmative SI can only be debated if it has first been considered by the Joint Committee on Statutory Instruments (JCSI).  That committee’s next meeting is confirmed for Wednesday, but it would generally need the SI to be tabled at least two days before hand in order to review it and prepare their report. That would mean the SI would have to be tabled Monday at latest under normal circumstances.

If it doesn’t then an emergency session would be needed (which appears unlikely), or Standing Order 72 will have to be suspended, which should be possible but might be tricky.

It therefore appears to be of urgent importance that the SI is tabled either Monday or Tuesday next week.  We would expect this to be the case, but the later in the week it is delayed, the more difficulties it is likely to have in the Lords.

 

Asking for extension beyond 12 April

There is not specificity on what the UK would have to do in order to “indicate a way forward” to secure a longer extension. However, Macron, when interviewed last night before the conclusion was reached, said that for anything other than a short “technical extension” (i.e. an extension based on approval of the WA) there must be “deep political change”.

techUK interprets this in line with the idea that if the deal fails in Parliament again then the EU will only grant delay if there is a clear new approach- i.e. a change in the red lines (to allow for a customs union etc, that can secure a majority), a General Election or a referendum. This is consistent with what we have heard from other sources.

 

European Elections

Were we to have a longer extension (i.e. if there were a significant political change) this requires participation in the European Parliamentary elections. The decision to do so would have to be taken before 12 April, which is the deadline for confirming participation.

In terms of the process of carrying out the elections, the Electoral Commission has already produced the relevant guidance, and so it would not require anything more than the Government to confirm its intent to hold elections.

 

Withdrawal Agreement vote

It remains pretty clear that the Government does not have the votes in Parliament. Even if it were to secure DUP/ a significant chunk of the ERG’s support, then we still have it losing by upwards of 30 votes, potentially as high as 50.

Attempts to secure Labour votes to reduce this number are not gaining traction and may have been harmed by the PM’s press statement on Wednesday. However, in reality it feels like those using the PM’s statement as a reason not to vote for the deal were unlikely to support it anyway.

There also remains uncertainty over whether the Government can bring back the Meaningful Vote at all. The Leader of the House has made clear that they do intended to do so, despite the Speaker’s ruling on re-asking the question.

In any event, it seems very possible that the Meaningful Vote question could be changed sufficiently to avoid being blocked by the Speaker. For example, including the extension in the approval could in theory ensure it is a different question.

 

Alternative routes

There remains a lot of pressure for the Government, particularly if it loses the meaningful vote, to look for an alternative deal. It seems highly likely on the maths that a free vote on the deal plus a customs union would likely pass the Commons.

There is therefore a growing demand for ‘indicative votes’. David Liddington has already said that such votes could take place “two weeks after the March summit”. However, there may be pressure to bring this forward given the likely failure to secure extension. Today there have been further indications that the Government is prepared to accept an indicative vote process, though nothing is confirmed.

This is ultimately in the Government’s gift, through there are still ways MPs could take control of the order paper to force indicative votes if Government doesn’t put them itself. The challenge is that indicative votes aren’t binding and so, sooner or later, the Government has to decide whether to accept any plan Parliament can agree on, or to ignore Parliament to end up with a No Deal Brexit.

 

No Deal

No Deal on 29 March is now almost impossible (subject to legal challenge if the SI were not passed).  However, the chances of No Deal by 12 April remain real and something that members should continue to plan for. Over the next few weeks techUK will continue to prepare No Deal guidance on our website.

Conclusion

You’d be forgiven for thinking this all sounds entirely bizarre you’d be right, but what is the long and short of what has happened?

First- next week is key. If the PM can pass her deal, then an orderly move into the transition period would almost certainly take place on 22nd May.

Second- 29 March is now not the deadline it was. There are still questions of legal uncertainty, but in effect we will be an EU member state next Saturday morning.

Third – 12th April is now the new crunch time for a No Deal Brexit. Continued stagnation until then would risk just create a new cliff edge.

Finally – if something doesn’t break the deadlock quickly, then European Parliamentary elections could very well be in the UK’s immediate future.

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