Waiting for Brexit
Kenneth Armstrong (University of Cambridge)
It is now two years since the UK Prime Minister Theresa May wrote to the President of the European Council Donald Tusk to notify him of the UK’s intention to withdraw from the European Union. If things had gone to plan, this would be the final day of the UK’s EU membership. The Royal Mint was even scheduled to produce dated commemorative coins to mark the UK’s departure from the Union.
But not only will the UK not be leaving the EU today, it will spend another day trying to decide what sort of Brexit – if any – it really wants. As a result of an agreement with the Union, the UK has until today to approve the text of the Withdrawal Agreement negotiated between the Union and the UK, in which case, the UK has until 22 May to legislate to implement the Agreement in domestic law. If MPs do not approve the Agreement, then the UK has until 12 April to inform the EU of its intentions. Unless something changes and a further request for an extension is made, the UK will leave the Union on 12 April.
Meanwhile amidst the paralysis in Government, UK MPs have attempted to seize control over the business of the House of Commons in order to determine whether a consensus can be forged on a way ahead. On 27 March – and recall this was 48 hours before the UK ought to have left the EU – MPs conducted a series of indicative votes on eight different propositions to see if a majority could be found for one or more options. When presented with choices as diverse as a No Deal Brexit, a free trade agreement, EFTA membership and Common Market 2.0 (essentially the European Economic Area Agreement and a customs union), MPs failed to find a majority in favour of any of the options. The closest votes were for a customs union (264 in favour and 272 against) and for a confirmatory referendum to approve a Brexit deal (268 in favour and 295 against). If the votes indicate anything it is that MPs still don’t know what they want.
But the votes do indicate something and that is that for the vast majority of MPs the debate is about the UK’s future relationship with the EU rather than the text of the Withdrawal Agreement itself. The EU has made clear that the Political Declaration which reflects the anticipated future relationship is open to change should the political ambition of the UK and its MPs change. Moreover, the Article 50 extension to 22 May is only conditional on the Withdrawal Agreement being approved not the text of the Political Declaration. All of which might suggests that a way forward lies in separating the Withdrawal Agreement from the Political Declaration at least for the purposes of signalling to the EU that there is a majority for the Withdrawal Agreement.
Nonetheless, there are obstacles in the way of this strategy. The first is that a formal approval vote as required by section 13 of the European Union (Withdrawal) Act 2018 is of the Withdrawal Agreement and the Political Declaration. The UK Government could propose an approval motion outside of the 2018 Act for the purposes of satisfying the requirements for an EU extension. That would still require a section 13 approval – including a Political Declaration – before the UK could formally ratify the Brexit deal.
The second impediment is that the Government will have to address Speaker Bercow’s procedural obstacle to the Government presenting the same proposition to MPs in the same session of Parliament. The Speaker has warned that he will need to be satisfied that the Government is presenting a different proposition to MPs. Clearly the text of the Withdrawal Agreement is unchanged since last MPs voted against it. Nonetheless, the context of meeting a new condition of approval by 29 March to allow an extension to 22 May when combined with the splitting of the Withdrawal Agreement from the Political Declaration would give the Prime Minister grounds for believing that an approval motion was a different proposition, especially if it was not a formal section 13 approval. Indeed, it might be strategically better not to seek a formal section 13 approval at this stage to allow a revised Political Declaration together with the Withdrawal Agreement to be presented to MPs for approval in a way that would also meet the Speaker’s potential objections.
The third obstacle would be that the Commons is not due to sit on Friday but the Prime Minister is seeking permission for the House to sit.
If these legal and procedural hurdles can be crossed the remaining impediments are political. With the Prime Minister agreeing to step down before the next phase of negotiation on the future relationship gets under way, and with high profile critics of her deal shifting their positions to back a deal to ensure Brexit happens, the numbers have begun to move in the Prime Minister’s favour. That leaves one constituency of MPs that have announced they continue to oppose the Withdrawal Agreement – the Democratic Unionist Party. Unless their objections are overcome or the Government secures sufficient support or abstentions from members of Opposition parties, the Prime Minister will not get the approval she needs for a longer extension.
With a majority of MPs against a No Deal Brexit and the 12 April deadline only two weeks away, the Prime Minister faces a fundamental choice if she doesn’t get the backing she needs for the Withdrawal Agreement. Either she throws her Government’s weight behind a further referendum – whether to confirm a conditional approval by MPs or to go behind their backs to obtain a new instruction from the electorate – or she could roll the dice and seek an early general election. Whichever option she picked would require a much longer extension. On 22 May, we may still be waiting for Brexit.
Kenneth Armstrong is a Professor of European Law at the Faculty of Law of the University of Cambridge. He has written extensively in the field of European Union law and policy, with a particular focus on the evolving governance and institutional structures of the EU. His book Brexit Time: Leaving the EU – Why, How and When? was published by Cambridge University Press in 2017.