8 January 2019

The Prime Minister has now confirmed that parliament’s ‘meaningful vote’ on the Brexit deal will take place next week. However, the circumstances surrounding the vote have not changed since it was pulled last month – the UK has not yet produced further “assurances” from the EU on the operation of the Irish backstop. Nor is there any evidence of a swing towards the Brexit deal as the Article 50 clock runs down – in particular the DUP still appear adamantly opposed to what it considers a “poisonous” backstop. It therefore remains highly unlikely that the government’s deal will pass at next week’s vote.

The question then is what comes next. Within 21 days, the government will have to set out the next steps in a statement to the House of Commons – this could mean anything from recommending No Deal to calling a general election, or putting a version of the deal to another vote. Parliament will also have a role to play – after a recent amendment by former attorney general Dominic Grieve, MPs will also have some power to direct the government on what action it should take. So there are a wide range of paths the UK could take if MPs vote the deal down next week.

One option that has been mentioned recently is “suspending” the Article 50 exit process. The General Secretary of the Trades Union Congress, Frances O’Grady, has said, “The sensible and responsible thing to do is to suspend Article 50. The chaos in Westminster means we need to find more time to come together and find a real alternative.”

Even the Irish government has raised the possibility of the UK ‘pausing’ Article 50. Deputy Prime Minister Simon Coveney has said that if the UK were to call for a new Brexit plan, this could require “pulling Article 50 for the moment.”

However, the UK cannot easily ‘suspend’ the exit process to seek more time. It can either request an Article 50 extension from the EU – which would require unanimous approval from member states. Or it can unilaterally withdraw its decision to leave the bloc. But this should be unequivocal – in theory, if it becomes clear the UK is using it in order to buy more time, the EU retains the right to cancel the revocation and ask the UK to leave. In both circumstances, the EU remains in charge of the timetable, and parliamentarians continue to face the same basic choices: a version of the existing deal (perhaps with some tweaks to the future relationship or assurances on the backstop); No Deal; and No Brexit.

The EU would be unlikely to extend Article 50 to allow for further negotiations

Most proponents of “suspending” Article 50 are talking about extending the process in order to give the UK more time to reach a better negotiating outcome. This was Labour shadow minister Chi Onwurah’s interpretation of Frances O’Grady’s proposal. Elsewhere, pointing to reports that EU officials may be considering an extension to Article 50, former Brexit Secretary David Davis has suggested that the UK’s could achieve its demands at the “last possible minute” as the EU would “come back to renegotiate.” Conservative Minister Margot James yesterday also suggested that “we might have to extend Article 50” if the MPs found it “impossible” to “coalesce around a reasonable deal.”

James’ statement is a departure from the government’s position, and the government has reportedly distanced itself from this. This is important. It is the executive that would have to submit any extension request – MPs can ask the government to do this, but they cannot produce this outcome themselves. Given the Prime Minister remains intent on leaving the EU on 29 March, it is very difficult to see how the UK achieves an extension – although today’s reports that UK officials have been “putting out feelers” in Brussels on extending Article 50 are interesting.

What’s more, the UK government cannot unilaterally extend the exit timeframe. Instead, it would have to submit a request to the EU to approve postponing the 29 March deadline – and all 27 member states would have to agree.

Some may argue that the EU will happily agree to extend the exit process if it means avoiding a No Deal scenario for now. But the EU is cautious about this. Member states are wary of expending more effort on Brexit, and (among other things) the institutions are concerned about the difficulties it would create for the European parliamentary elections in May if the UK was still formally a member.

Officials have previously set out only a narrow set of circumstances under which the bloc would consider an extension. They have argued that it would require a fundamental shift in British domestic politics in order to be of any value to the bloc – in short, the EU would likely support an extension in order to hold a second referendum (in particular, one that set out an option to remain) or a general election. Equally, it is likely that the EU would accept a short extension for straightforward procedural reasons – for instance, if a deal had been ratified in the UK, but the legislation to implement it hadn’t yet passed through parliament.

However, an extension cannot simply be an end in itself – the EU is unlikely to approve prolonging the UK’s exit date “if it is time just for the sake of putting off an inevitable No Deal”, as one EU diplomat put it. In theory, it may grant a short time-limited extension at the last minute, in order to allow time to better prepare for No Deal. But the UK is highly unlikely to secure an extension in order to significantly amend or renegotiate the deal – why should the EU allow it more time to try to obtain concessions?

Revoking Article 50 to avoid No Deal also has difficulties

The other option available to the UK is to withdraw its decision to leave altogether. Last month’s judgement of the European Court of Justice found that, unlike a request to extend, the UK could unilaterally revoke Article 50, without requiring any approval from the EU or member states.

For this reason, some have suggested therefore that the UK should withdraw Article 50 rather than head for No Deal in the event MPs cannot find a majority for any agreement. Irish Taoiseach Leo Varadkar is on record as saying, the UK could extend or revoke Article 50 “so that the UK parliament has more time to come together and decide what they would like the outcome to be.” Equally, former Prime Minister John Major has argued, “We need to revoke Article 50…The clock, for the moment, must be stopped. It is clear we now need the most precious commodity of all: time. Time for serious and profound reflection.”

Both are misleading presentations of what revocation actually means and how it could be used. Varadkar and Major appear to suggest the UK can withdraw Article 50 as a short-term measure, before going on to resubmit its decision to leave shortly after. However, this is not in keeping with the ECJ’s ruling on revocation. The court noted that any decision to withdraw a notification to leave must be “unequivocal and unconditional” – revocation should not become a tactical tool for a departing member state to buy more time in negotiations. The EU is therefore unlikely to entertain any attempt by the UK to use revocation in bad faith to renegotiate the withdrawal deal. Given the bloc retains the right to ask us to leave if we misuse revocation, it is not a tool for avoiding the No Deal cliff-edge or altering the Brexit choices on offer.

And, importantly, revocation may not be a quick process that the government can trigger independently. The ECJ argues that withdrawing notification to leave must “follow a democratic process in accordance with the national constitutional requirements.” This could mean that the UK has to pass another Act of Parliament to revoke the Withdrawal Act – although is not fully clear that this is necessary, it would make sense for the decision to cancel Article 50 to require the same legislative process as the decision to trigger it in the first place. In reality, a UK government may only feel it is legitimate to cancel its decision to leave after a second referendum, in which a majority vote to remain.

Talk of delaying Brexit day puts off the important decision MPs must make

Unless there is a clear purpose to delaying the UK’s exit, the EU is unlikely to be open to an extension. Importantly, extending Article 50 does not significantly change the options on the table for MPs. They can either decide to approve a version of the existing deal (albeit with some tweaks to the political declaration or assurances on the backstop); reject this and head eventually for No Deal; or decide to revoke the UK’s decision to leave altogether. For now, there appears to be no majority in parliament for any option. But if MPs are determined to avoid No Deal – as most are – they will have to decide in favour of something sooner or later. Extending Article 50 does not change this fundamental reality.