11 Apr 2019

October Surprise. An unexpected new deadline from the EU-27 will have real consequences

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American presidential elections have long had the notion of an ‘October Surprise’, a late event or revelation that could alter the dynamics of the contest. In reality, the number of such incidents has been small and when they have occurred (the news in 2000 that George W. Bush had once been arrested for drunk driving and the emergence in 2016 of the infamous Donald Trump Access Hollywood tape) they do not seem to have been decisive. The concept, though, still lives on.

The EU Council produced its own version of an October Surprise in the early hours of this morning. The surprise in this instance was the choice of 31 October as the next deadline for Article 50 to be satisfied. This was not a date which had figured in any if the pre-meeting speculation. It is different from the 30 June settlement proposed by Theresa May, and the previous ‘flextention’ ideas that had been floated by Donald Tusk and others which had put 31 December and 31 March 2020 in the frame. The final version agreed by the EU-27 does not set 31 October in absolute concrete. The UK could leave earlier with no deal on 1 June if it did not agree to participate in the elections for the European Parliament due next month, or earlier if the Withdrawal Agreement were to be enacted.

The chances of the UK avoiding the European Parliament elections are now exceptionally slim. At the close of business today, the House of Commons will enter its deferred Easter recess, returning once more on 23 April. During that interregnum, the European Parliament will shut up shop on 18 April and will remain closed until after its elections in late May, not returning until 2 July.

In theory, if the UK Parliament passed the Withdrawal Agreement on, say, 24 April, the European Parliament could be called back into special session to back it as well (as is required under Article 50 for any exit from the EU to transpire). In practice, this would be considered a very complicated, expensive and ultimately unnecessary exercise – not least because the new deadline of 31 October affords time. The odds are overwhelmingly that the UK could not affect an early exit until after these elections.

So, what are the other differences that a choice of 31 October makes and are they consequential?

The new date makes a successful May-Corbyn deal on Brexit even more unlikely

Part of the Prime Minister’s pitch to her fellow leaders as to why they should allow an additional extension at all (and make the date that of 30 June) was that dialogue between herself and the Labour Party now existed and should be allowed the chance to continue what she insisted was real progress. By moving the date to 31 October, ironically the EU may have killed off any (although to be fair unlikely) chance that the two frontbenches would produce a plan that Parliament bought.

Why? Three reasons. The first is that for such a long-shot accord to be struck there needed to be a real sense of urgency, bordering on desperation, that if it were not secured at warp speed then the alternative was a highly disorderly Brexit with severe consequences for which the whole of the established political class would be blamed. If there had only been a short extension to 30 June then that fear factor would still have been there. Moving to 31 October takes air out of the tyres.

The second effect of the new date is within the Labour Party. The substantial contingent of the parliamentary Labour Party which is essentially ‘second referendum or bust’ in sentiment will be emboldened to insist that any bargain which its leadership reached with the Government has to be submitted to a confirmatory ballot, and that a 31 October deadline renders this entirely practical in a manner which a 30 June date would probably not have done. This is a condition that the Prime Minister cannot accept or put differently if she did her tenure in Downing Street would be over in seconds.

The final aspect concerns the calculations of Conservative MPs. They hate the idea of an outcome that Jeremy Corbyn in large part dictated and suspect (correctly) that it would come at the price of a hard commitment to remain in ‘the’ (rather than ‘a’) Customs Union indefinitely. A longer period inside the EU allows them the chance to plot a new course under a new leader as an alternative.

The choice of date complicates the timing of the Conservative Party leadership election

That Mrs May’s days in office are severely numbered is obvious. How many days are left is not. There is a consensus in Cabinet, the parliamentary party and the wider party machinery that she has to leave in short order. There is a division as to the practicalities of how short that order has to be.

There are basically two options available. If it were not for the very high probability of the party having to contest the European elections then the first of these would be appealing. Option A would see Mrs May compelled to resign pretty much as soon as the House of Commons comes back from the Easter recess. A rapid fire round of votes among Conservative MPs would produce the two finalists just before or soon after the 2 May local elections have been held. That in turn would allow for a fairly speedy election among the membership over about a four week period. A new Prime Minister could be installed by the end of May.

Option B, by contrast, starts from the assumption that Conservatives could not distract themselves from the task of fighting what may be tricky European Parliament elections by having the membership mesmerised by an internal leadership election instead. It holds that there would have to be a ‘truce’ between the two finalists until after 23 May and hence the campaign proper could not start until after that with a winner not emerging until the end of June.

Does the end of May versus the end of June matter? Yes, for one big reason. The end of May keeps open the option of the new Prime Minister betting the farm on calling a general election for 20 June, 27 June or 4 July (at the latest), obtaining a mandate for their preferred stance on the ‘end state’ of the Brexit negotiations and breaking the present parliamentary numbers for more favourable ones.

The end of June takes that opportunity off the table as it would mean an election in late July or even August, which a Conservative PM would be bonkers to contemplate as Conservative voters are more likely to take foreign holidays at that time that Labour adherents. There is little flexibility of when to call a UK election as the law insists that one cannot happen until at least 17 days (excluding all weekends and public holidays in any part of the UK, so 12 July in Northern Ireland counts) after the previous parliament had been prorogued. A later leadership election knocks out the early election and the next chance to hold one (October) would come too close to the new 31 October deadline.

The new date means that the most feasible early Brexit would be in late July or early September

If the cross-party talks break down (as is highly probable) then there are only two other means of a Brexit before 31 October. The first is that the House of Commons takes over from the Government again and passes the Withdrawal Agreement but inserts the provision of ‘a’ Customs Union into the Political Declaration.

This is not impossible. The Conservative Party would loathe it but might then be calmed by the fact that this was not actually a deal with Mr Corbyn’s signature on it, the wording on ‘a customs union’ is ambiguous and as it is in the Political Declaration it will not be legally binding. The other route (which most Tories would prefer) would be to return to the idea of finding a format that the DUP can live with and therefore the ERG contingent could tolerate, under a new leadership.

Which points to July (or possibly early September depending on when the European Parliament is sitting). It suggests July because on the second leadership election scenario outlined above it will take until then for there to be a new PM and Cabinet to find a solution that the DUP can endorse. It would mean that Parliament would have started on a new session so the Speaker’s ruling that the Government cannot bring what is at core the same Withdrawal Agreement back twice inside the same session would be moot. Finally, the new European Parliament would be in place to back it.

After all that the UK has been through over Brexit, a formal departure before 31 October would be viewed as a comparative personal triumph. It would enable the new Prime Minister to arrive at the Conservative Party conference in Manchester on 29 September in the mode of Julius Caesar after his victory over Pharnaces II of Pontus in 47 BC (veni, vedi, vici – “I came, I saw, I conquered”) and having secured party unity, then weigh the odds of a dash for an election held on… 31 October.

Tim Hames
Director General, BVCA


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