06 Mar 2019

Dates for Diaries. A short delay (at least) to Brexit appears very likely. When might it occur?

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Almost everyone involved in the Brexit process concedes privately if not publicly that there may need to be a short extension to Article 50 even if Theresa May wins in her meaningful vote on the latest version of the Withdrawal Agreement, a battle that is scheduled to occur on Tuesday.

The sole exception to this is the Prime Minister herself who continues to contend that it is possible for the UK to depart from the formal constitutional and political structures of the EU on 29 March at 11pm. Even behind closed doors she is apparently reluctant to contemplate that this might not be the case, in part out of fear that once this point is conceded momentum towards rapid movement may cease.

Most of her colleagues – ministerial and officials – are operating from a different assumption. Their minds are turning to what the optimal date might be if, as they expect, an alternative is required.

The reasons why few think that, even with a political victory on 12 March on the meaningful vote, a deferral in date is close to inevitable are quite compelling. They include the following elements. First, the Withdrawal Agreement 2.0 (close to 1.1 some might assert) is not an Act of Parliament in itself but a treaty which, if endorsed, then requires a Bill to translate its provisions into domestic law. In ordinary circumstances, such legislation would be the subject of intense parliamentary scrutiny. In this instance, a strong argument can be made for expediting matters as the central questions have already been debated extensively in the House of Commons but it would be hard simply to ram it through in a few days after 12 March. Such a strategy would require the Opposition not to use all available means to frustrate it and the incentives for Jeremy Corbyn to be that charitable are small. This single challenge alone implies there is not enough parliamentary time left before 29 March.

This is compounded by a series of other important considerations. There are other bills currently stuck in parliamentary limbo - relating to vital matters such as immigration and trade - which cannot realistically proceed until the Withdrawal Agreement has become a matter of law. The notion of hammering them all through before the end of the month looks exceptionally ambitious.

Additionally, there are literally hundreds of other changes which need to be made before Brexit that do not demand new primary legislation but do require parliamentary consultation through secondary legislation or statutory instruments (SIs). These have to be laid before the House of Commons via a proper process.

At one stage, the Government estimated that around 1,000 of these SIs might be necessary to ensure a smooth Brexit process but over time it has cut that figure back to a mere 600 or so. As of Friday, 466 of them had been set down. Ministers would need to move at light speed to reach their quota or take a legal risk in deciding that some of these changes were not really needed.

Finally, the UK needs to detach itself from trade agreements which it reached with third countries as an EU member and then reattach itself to those self-same texts as an independent actor. This has not been occurring at any pace and despite Liam Fox’s confidence that it all will be well in the end, others (not least in his own department) would not want to wager much money on his prediction.

So, if a date other than 29 March for ‘D-Day’ is becoming more probable, what considerations are at work in determining how long a ‘technical’ extension of Article 50 should be? Contingent, that is, on the Withdrawal Agreement eventually being embraced by an albeit reluctant majority of MPs. If it is not, then a ‘back to the drawing board’ extension of Article 50 could hardly be described as just ‘technical’ and would last a lot longer than a few months.

Indeed, in one scenario that was leaked from the Brussels, the European Commission floated the notion of abandoning the idea of a transition period outside the EU altogether and keeping the UK as a full member to December 2020. To observe that this idea did not win much favour among the European Research Group section of Conservative MPs would be a massive understatement. They would rather there was no delay in the Brexit date at all and are not best pleased that Cabinet members have scuppered a ‘No Deal’ Brexit.

There seem to be three considerations of note if a new Brexit date is required. The first is a desire to avoid having to seek a technical extension more than once. It would be extremely embarrassing to go to the EU-27 and acquire their unanimous consent for a new date only to have to do it again later. While the politicians might instinctively prefer as short a delay as possible (in part to spare their own blushes about having got into a position where a postponement was necessary at all), other players will press for more time to be absolutely sure that the Brexit plane lands at the second attempt.

The second involves the crucial role of the European Parliament in proceedings. The Treaty of Lisbon and its Article 50 includes the obligation for the European Parliament to approve the Brexit agreement as well as the UK House of Commons. To do that it needs to be sitting. The curveball here is that there are European Parliament elections occurring at the end of May which means the chamber will not be sitting for the better part of 10 weeks this Spring.

To make matters yet more complex still, there is a vigorous legal and political debate as to whether the UK would have to be involved in this ballot if it was still a full member of the EU, either at the time that all votes had been cast or when the newly elected Parliament convened. On balance, the UK could probably escape this rather surreal situation but there are plenty of people in Whitehall and Brussels who would rather not take a gamble on this.

Thirdly, and for reasons that are not altogether clear, there appears to be a thesis that it would be better if the day after Brexit were not an ordinary working day in case anything ‘goes wrong’. That is why the UK triggered Article 50 on 29 2017. It did so because 29 March in 2019 is a Friday.

On the above analysis, there are four dates for an alternative Brexit that seem to be in the frame.

18 April: This is the last date that the European Parliament is in session before it enters recess in advance of the aforementioned elections. It is also the Thursday before the Easter weekend so is not immediately before a conventional working day. It would have the advantage for the PM and other politicians that it is only 20 days later than the original projected moment for Brexit. It has the considerable disadvantage that this might not be long enough for all that is needed to be complete.

3 or 24 May: In this scenario, the European Parliament would back the Withdrawal Agreement before it stands down for its elections, but the UK would buy itself more time to deal with the many outstanding issues relating to Brexit that I set out earlier. Both 3 May and 24 May have the plus that they are Fridays just before Bank Holiday weekends. Added to which neither are that much of a deferral from 29 March. There are some inside Conservative circles who think that 3 May 3 would be best because it will also be the 40th anniversary of the general election in 1979 that ushered Mrs Thatcher into 10 Downing Street. Personally, I think this is fairly barking logic but I do not discount it happening.

29 June: The latest date which one could insist was still a mere ‘technical’ delay would be 29 June. That is admittedly a whole three months beyond the original choice but would be tolerable. Once again, it would be expected that the European Parliament had passed the Withdrawal Agreement in April but this would allow the House of Commons much more time to ‘get their ducks in a row’. It is also a Friday but even more significantly it is the Friday before the new European Parliament (minus UK MEPs) starts its life on Monday 2 July. The majority legal view is that the UK (and EU-27) would be safe in conducting European Parliament elections excluding British electors if the country was due to be out of the European Union before the new European Parliament was constituted.

Left to their own devices, one suspects that this would be the preferred Brexit date of the UK’s top civil servants. Whether their political masters would be as enthusiastic about that long a delay is more contestable.

Tim Hames
Director General, BVCA


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