23 January 2019

Earlier this week, two notable pieces of legislation were tabled by MPs looking to ‘rule out’ No Deal. First, there is the European Union (Withdrawal) (No. 3) Bill proposed by Labour MP Yvette Cooper, which is supported by a cross-party group of MPs including Nick Boles, Hilary Benn and Sir Oliver Letwin. This Bill would obligate the Government to table an amendable motion seeking a nine-month extension of Article 50 until 31 December, if a deal is not passed by the 26 February. An amendment tabled by Cooper gives time to debate this Bill. The Bill’s chances of passing were given a boost last night when the Shadow Chancellor, John McDonnell, indicated that the Labour frontbench would be inclined to support it in Parliament.

The second piece of legislation is a proposed amendment by former attorney-general, Dominic Grieve, which proposes granting extra powers to Parliament over the Order Paper – Parliament’s agenda. Setting the Commons order paper is typically the prerogative of the Government. This amendment, however, would allow the Chairman of Way and Means to table a motion in neutral terms on Brexit as the first item of business on six specified days (12 and 26 February, and 5, 12, 19 and 26 March 2019). MPs could then table amendments to these motions. This is a notable change from an earlier leaked version, which allowed a Brexit-related motion put forward by “300 Members of the House elected to the House as members of at least five parties and including at least 10 Members elected to the House as members of the party in Government” to take precedent in the Order Paper. This aspect of the amendment has now been scrapped. In its current form, the amendment allows MPs to force debates and votes in parliament on the Brexit withdrawal process on the six days mentioned above – this could include, for instance, requests for the extension or revocation of Article 50, which could postpone or stop the UK’s departure from the EU. Any amended motion would require a majority in the House to pass.

The Grieve amendment, unlike the Cooper Bill, does not make provisions specifically to extend Article 50. However, by creating a number of opportunities for backbenchers to get their Brexit debates onto the agenda, it allows Parliament greater powers to shape the Brexit process. For instance, MPs could use the allocated days to test support for requesting an extension to Article 50 quite quickly.

However, neither piece of legislation directly alone rules out No Deal, and extending (or revoking) Article 50 comes with significant problems worth highlighting.

Far from buying the UK time, extending Article 50 risks shortening the transition period

In an op-ed for the Guardian, Yvette Cooper has insisted that her Bill does not threaten Brexit, and instead “gives us more time” by extending Article 50. This may seem attractive with the clock running down; however, in reality a nine-month extension risks creating further problems down the line, as it would eat into the transition period – which is when concrete decisions about the future UK-EU relationship will need to be made by the UK and negotiated with the EU. The transition does not have a fixed length; it has a fixed end date of 31 December 2020 (with the option of a single extension of up to two years). This end date would not automatically change if Article 50 was extended beyond March; indeed, the EU might be reluctant to change the end date, as the current date is carefully calibrated in line with EU budget requirements. The transition is already seen by some as too short to negotiate the future relationship; shortening that period by a further nine months for the sake of parliamentary squabbling is not in the interests of either the UK or the EU.

If more time is needed, there are other ways to achieve this without delaying Brexit – cancelling February’s week of Parliamentary recess is an obvious place to start, and more radical options such as forcing Parliament to sit on Fridays and weekends could also be considered.

A nine month extension would also create problems for the EU

An extension to Article 50 requires unanimous approval from the EU27. A nine month extension for the UK to try to find a solution is currently not on offer. One EU diplomat said, “If it is time just for the sake of putting off an inevitable No Deal,” the EU is unlikely to approve an extension. However, another EU official said, “Should the Prime Minister survive and inform us that she needs more time to win round Parliament to a deal, a technical extension up to July will be offered,” coinciding with when MEPs take their seats in the European Parliament. The UK will have to demonstrate it has a plan of action that is in the bloc’s interests and requires an extension (such as a second referendum, general election or extra time to complete the ratification of an agreed deal). But even if the EU agrees to this, an extension creates new problems for both sides.

On the EU side, the European Parliament elections will take place in May and if Article 50 was extended by nine months, would UK voters elect new British MEPs and would those MEPs step down once the UK leaves the EU? Some commentators have cited legal advice received by the European Parliament in 2017, which suggests the UK could forego hosting elections for MEPs. However, the Economist’s Political and Brexit Editor, John Peet,  argues that if Article 50 was extended and the UK did not host elections for the European Parliament, then “any UK citizen could go to court demanding the right to elect MEPs – and the ECJ would agree.” As a full member of the EU, this argument would likely succeed, causing problems for the workings of the European Parliament. The Institute of Government has suggested a range of options, including UK MEPs remaining in place until the end of the Article 50 process, granting UK MEPs observer status or appointing national representatives. Clearly, therefore, the European elections issue is not insurmountable – though it does raise some thorny problems.

Given that the EU has to agree to an extension, it could impose certain conditions on the UK. The Prime Minister has warned that, in extending Article 50, “There is the risk that individual countries would seek to re-open elements of the agreement, for example on fisheries or Gibraltar.” Combined with the fact that come July a new European Commission will be established, taking charge of the Brexit process from the EU side, extending Article 50 raises genuine complications for ratifying a deal.

Does either piece of legislation actually stop No Deal?

Reports suggest that a number of government ministers are ready to resign in order to support the Cooper Bill (or some variant of it) to ‘rule out’ No Deal. However, in its current form, the Bill would not do this. All it achieves is to affirm that the House is in favour of preventing No Deal and potentially obligates the Government to request an extension to Article 50 – with all the aforementioned problems this entails. However, to actually prevent No Deal, the Bill sponsors’ objective, it is not enough that Parliament opposes it. Parliament must instead command the support of a constructive alternative; adding nine months to the Article 50 clock merely postpones No Deal, rather than ruling it out. The choice parliamentarians must make remains the same: support a version of the Prime Minister’s deal, go ahead with No Deal, or revoke Article 50.

However, there is a more indirect way in which extending Article 50 could stop No Deal.  Put simply, a nine month extension is probably enough time to legislate for and hold a second referendum – something which is not true for a shorter, ‘technical’ extension. Despite UK Government estimates that a second referendum could take more than a year to organise, the Constitution Unit and the Institute for Government have both estimated that the process could be completed, from start to finish, in 21-24 weeks. If such a referendum led to a Remain vote, Article 50 would then be revoked – thus preventing not just a No Deal Brexit, but Brexit altogether.

Another way No Deal could be ‘ruled out’ is if provisions were made to revoke Article 50. In a leaked conference call between Chancellor Philip Hammond and business chiefs regarding No Deal, Hammond said that a cross-party group of backbenchers intended to “create a parliamentary power to withdraw the Article 50 notice and to lay that on the table as a sort of ultimate backstop if the work the Government is doing in seeking to find a way forward fails to deliver.” Hammond suggested such legislation would pass, and Labour leader Jeremy Corbyn’s repeated calls to take No Deal “off the table” only strengthen its chances of success.

Neither the Cooper Bill nor the Grieve Amendment includes provisions to revoke Article 50 automatically. However, future legislation could make revoking Article 50 – rather than No Deal – the legal default option in the absence of a Withdrawal Agreement. The Grieve Amendment would also give Parliament the chance to bring forward such a debate.

Despite these possibilities, it is not clear that Parliament could force the Government to extend or revoke Article 50. Procedurally, how would such a motion bind the Prime Minister to write a letter to the European Commission requesting an extension or revocation? Equally, if a majority of MPs vote in favour of a policy the government does not support, this would be seen politically as a matter of confidence. If the Government went against the will of Parliament, could it legitimately continue to govern?

Can the UK stop the clock instead of extending Article 50?

Some commentators have argued the UK should revoke Article 50 to ‘pause’ the clock and find consensus on what to do next in Parliament. Most notably, former Conservative Prime Minister John Major has said, “We need to revoke Article 50… It is clear we now need the most precious commodity of all: time. Time for serious and profound reflection.” However, as Open Europe’s Aarti Shankar has explained, it is highly doubtful that the UK could revoke Article 50 in order to buy more time. The European Court of Justice ruling stipulates that although revocation can be triggered unilaterally by the departing member state, it must be an “unequivocal and unconditional” decision to end the process of leaving the EU. It is therefore not simply a way to pause the clock or gain additional negotiating leverage; indeed, the EU would retain the right to ask the UK to leave if it revoked Article 50 in bad faith.

Conclusion

Neither the Grieve Amendment nor Cooper Bill would automatically stop No Deal. However, if passed, both increase the likelihood of extending Article 50. Yet doing so would create further complications for both the UK and the EU. As well as requiring EU approval, an extension of the Article 50 process would shorten the transition period, cause difficulties with the European Parliament elections, and risks re-opening the Withdrawal Agreement to the detriment of the UK’s interests. It might also be interpreted as a sign that Parliament had failed to deliver on the referendum result, damaging trust in the institution. Ultimately, the fundamental choice that MPs must make remains between supporting a deal, No Deal or no Brexit. Extending Article 50 would merely delay the moment of reckoning.