2 September 2019

When Parliament returns from recess tomorrow, a cross-party group of MPs are set to renew their efforts to prevent a No Deal Brexit. The Bill, published today, states that if Parliament has not ratified a deal or approved a No Deal exit by 19 October, then the Prime Minister must seek a three-month extension to the Article 50 process – ending on 31 January.

The proposed Bill does not guarantee an extension

Parliamentary action cannot guarantee an extension, even if the proposed Bill passes both the Commons and the Lords and receive royal assent before the prorogation of Parliament begins next week. Article 50 can only be extended if the UK Government asks for it and the EU27 unanimously agree. Neither of these can be guaranteed. Although the UK Government could not simply ignore the law if a Bill was passed, they may seek to exploit any loopholes – although the MPs who drafted the Bill have left little room to manoeuvre (for example, by mandating the form of the letter by which the Prime Minister must seek an extension, and by giving Parliament a vote on an extension of a different length to three months).

Equally, while most EU countries would likely be minded to grant the UK a further extension, unanimous support cannot be taken for granted. Some EU leaders would likely ask the same question they put to the UK in March and April: what do you want an extension for?

Another extension would delay No Deal, not take it off the table

Even an extension that was both sought and implemented would not prevent a No Deal Brexit. It would only prevent a No Deal Brexit on the 31 October. The UK is currently living the reality that extensions merely delay No Deal, rather than preventing it. As with the previous extensions of Article 50 to 12 April and 31 October, a further delay would merely put off the fundamental choices facing Parliament.

What would Parliament use an extension for?

The anti-No Deal coalition covers a broad spectrum of MPs. While a significant portion wish to halt Brexit entirely, a minority (mostly Conservatives) backed the Withdrawal Agreement – and a further group (mostly Labour MPs) opposed both the deal and No Deal, but say they are opposed to stopping Brexit as well. Because of these and other political differences, it is not clear what Parliament would do with additional time.

In theory, an extension might provide enough time for a general election before the UK leaves the EU. However, not all anti-No Deal MPs necessarily want an early election (some would be likely to lose their seats). Moreover, under the Fixed-term Parliaments Act, an early election can only be triggered in two ways:

  • If two thirds of MPs vote for an early election.
  • If a vote of no confidence is passed, and the House then fails to pass a motion of confidence in a Government within 14 days.

Under either route, the date of the election is set by the incumbent Prime Minister – and there is no maximum campaign length. The much-discussed possibility that the Government could simply schedule the election for after exit day would therefore remain even if Article 50 was extended. There are only two watertight ways for MPs to prevent this: amending (or circumventing) the Fixed-term Parliaments Act, or voting confidence in an alternative Government.

Alternatively, some MPs hope that an extension could be a path to a second referendum, with Remain on the ballot paper. To achieve this, the extension would need to be relatively long – UCL’s Constitution Unit have estimated that the necessary legislation and regulated campaign period would require just under six months between the introduction of legislation and polling day. Moreover, MPs – including some who also oppose No Deal – have repeatedly voted against a second referendum. Support for one peaked during the indicative votes process in April, when 280 MPs voted for the “confirmatory public vote” option – well short of the 320 votes needed for a working majority.

In theory, an extension could also be used to secure, and then pass, an alternative Brexit deal with the EU. In practice, this seems unlikely. More time alone will not resolve the political obstacles to a deal between the current UK Government and the EU27, especially on the controversial Irish backstop. And the chances of this Parliament passing something similar to a Withdrawal Agreement it has already rejected three times seem slim.

Parliament remains unwilling to take decisive action to stop No Deal

In February 2017, 494 MPs – 84% of them – voted to empower the Government to trigger Article 50. Ever since, a No Deal exit has been the legal default unless a deal is ratified or Brexit is reversed altogether. Around 140 MPs who voted to trigger Article 50, and now say they are opposed to No Deal, voted three times against the negotiated deal. Their votes helped to bring about the current impasse.

There are only two concrete ways for Parliament to stop No Deal: voting for a deal, or voting to revoke Article 50. So far, MPs have opposed both. They voted not only against the Withdrawal Agreement, but also against all ‘softer’ forms of Brexit in indicative votes. The indicative votes process also saw MPs twice reject motions aimed at revoking Article 50 (supported by only 184 MPs on the first occasion, and 191 on the second).

Ultimately, there have always been three options for MPs – leave with a deal, leave without a deal, or stay in the EU). The presence of all three options, and the refusal of MPs to face up to this choice, has allowed negative coalitions to block approval for every outcome other than more delay. Parliament may have to face a binary choice if the Brexit impasse is to be resolved.