5 March 2019

In a popular article yesterday for Conservative Home, Martin Howe QC argues that for Brexiteers, a long extension to the Article 50 period, even one of 21 months, would be much better than accepting the existing Brexit deal. Howe, the Chairman of Lawyers for Britain, is an influential figure in Eurosceptic circles, and is one of the eight pro-Brexit lawyers whose ‘star chamber’ will judge the Attorney General’s changes to the backstop. His argument is interesting, and may have some appeal to those Brexiteers who cannot countenance voting for the existing deal in any circumstances. However, it is far from clear that a long extension would really be in the interests of those who want a ‘cleaner’ Brexit than is offered under the current deal.

Howe is really arguing for a long extension as a bridge to No Deal

As I have argued before, extending Article 50 merely delays the choices MPs have to face; it is not an end in itself. Comparing it directly to the Withdrawal Agreement as Howe does is therefore problematic. The exception is his argument that a long extension could de facto replace the transition period, which is plausible – though this would mean prolonging EU membership for another 21 months, with less clarity that this period is actually a transition to some form of Brexit.

Howe seems to hope that this long extension could be a bridge to a No Deal Brexit, though he does not say so openly. For example, he argues that “under the Article 50 extension the UK would not be bound by the backstop… Instead, on 1st January 2021 we would just leave unencumbered. We would be able to negotiate for a trade deal with the EU with a strong hand.” Of course, any negotiated withdrawal from the EU will require a backstop to be in place; no delay, however long, will persuade the EU or Ireland to erase this red line. As such, when Howe says the UK could “just leave unencumbered” in 2021, this can only mean leaving with No Deal – and then trying to negotiate a Free Trade Agreement (FTA) with the EU from a No Deal baseline. (Incidentally, it is far from clear that the EU would negotiate an FTA in that scenario with withdrawal issues unresolved).

The political consequences of a long extension would not necessarily favour Brexiteers

However, it is far from clear that a No Deal Brexit really be the most likely outcome at the end of a longer extension. Firstly, the terms and conditions of any extension will have to be agreed with the EU27 – and why would they agree to such an extension under the understanding that the UK would leave with No Deal at the end of it? And secondly, it is clear that this Parliament will not countenance a No Deal Brexit, and is prepared to go to extreme lengths to stop it. Nor is it clear that the Government would push for a No Deal Brexit; the Foreign Secretary said this morning that if the deal doesn’t go through, “the only solution is to find a deal that does go through.”

It is unclear why this state of affairs would be any different under a long extension. In theory, a general election within the 21-month period could result in a Parliament more amenable to No Deal, but this would require significant shifts in domestic politics which cannot be guaranteed at this stage. It is just as likely that a general election would make the parliamentary situation worse for Brexiteers, not better.

While a long extension might give the UK more time to prepare for a No Deal Brexit, it is also likely that a 21-month extension will embolden attempts to soften Brexit or frustrate it altogether. Given the fragility of the Government’s majority, an early general election is certainly a possibility. Pressure for a second referendum would also increase – with the key difference that there would now be more than enough time to hold one ahead of the UK’s scheduled departure.

A long delay in Brexit as a result of Parliament’s inability to coalesce behind a workable deal would also have profound consequences for trust in democracy. Leaving the EU has already been a drawn-out process – would ordinary Leave voters really buy the argument that a further 21 months as an EU member is necessary to achieve the perfect Brexit? And how would they react to being told to vote in European Parliament elections in May – elections for an organisation they voted to leave almost three years ago? For this reason, it is perhaps unsurprising that senior Conservatives in the European Research Group (ERG), to which Howe is closely aligned, have distanced themselves from his arguments. It is difficult, ultimately, to see how a long extension is in their political interests.

The real deadline for a short extension is 1 July, not 18 April

On a separate matter, Howe dismisses a shorter extension of three months, which he says “provides at most three more weeks of negotiating time” because the European Parliament will dissolve on 18 April prior to the elections. He argues, “If a deal is not agreed by then it will no longer be possible for it to be approved by the European Parliament.” However, this is wrong. Although the European Parliament will not be sitting past April 18, it is not “dissolved” in the same way the UK Parliament is before elections, and can be recalled to ratify the Withdrawal Agreement afterwards if needs be. Article 11 of the 1976 Act which established direct elections to the European Parliament states that “the powers of the outgoing European Parliament shall cease upon the opening of the first sitting of the new European Parliament.” As such, the real deadline for a shorter extension is not 18 April, but 1 July – the day before the first sitting of the new European Parliament. If the UK extended any later than this, it would probably have to participate in the European Parliament elections – otherwise the new Parliament would not be legally constituted.