Richard Parry assesses the convoluted Brexit developments after a dramatic evening in Brussels when EU leaders made policy in Theresa May’s absence.
To finally defuse the 29 March Brexit bomb Theresa May needs to get an order through Parliament under section 18 (4) of the European Union (Withdrawal) Act 2018 to move exit day to when ‘the Treaties are to cease to apply to the UK’. But what is that date? For much of yesterday evening, it seemed set to be 22 May. Even if no deal were agreed and the UK declined to organise European Parliament elections, it was reported (by RTE and others) that Brexit would not need to happen until then. In the Council conclusions that changed. 22 May is now available only if ‘the Withdrawal Agreement is approved by the House of Commons next week’. If not, the extension is until 12 April and the Council ‘expects the UK to indicate a way forward before this date for consideration by the European Council’. The studied ambiguity of that phrase is meant to keep all the options open for the UK. Probably EU leaders, especially Emmanuel Macron, do not want a hard Brexit to be a major news story four days before the polls. Another date in circulation at one point, 7 May, might be available as an extended no-deal moment. But last night only two weeks were bought with full security.
The section 18(4) order is secondary legislation, requiring only a single vote in the Commons and Lords, but the need to specify a date suggests that the third meaningful vote would have to come first. A heavy defeat of it is now priced in. But something may have changed in May’s mentality on Wednesday 20th. It was suggested (especially by the Financial Times) that she embraced a hard Brexit as her plan B. This is consistent with the wording of her letter that day to Donald Tusk. May probably wanted to come back from Brussels with two extended exit days in her pocket: 30 June if she got the deal through, and potentially up to the end of the negotiated transition period on 31 December 2020 if she did not. But this was knocked out by brexiter resistance in the Cabinet and demands for clarity by the EU27. Her letter to Tusk asked for 30 June only (and she did not even get that). Her ‘address to the nation’ on 20 March, a sad event when she was lost in a backdrop of flags and wood and sought to mobilise the people against Parliament, mentioned no-deal as an option but said nothing about it and issued no warnings about its effects. Her words in Brussels were similar.
Neither the Speaker of the House of Commons nor the UK government wanted a re-run of the second meaningful vote before the Brussels Council. John Bercow insisted on a new question, Theresa May on a new answer. The Speaker’s statement of 18 March was well-signaled when on 14 March he had selected for a vote a cross-party amendment by Labour’s Chris Bryant, citing the antique procedural precedents. Bryant withdrew the amendment; the surprise was that Bercow made a general statement unrelated to any proposed new vote, and did not give No 10 advance notice. Ministers had already made MV3 contingent on the numbers, particularly DUP support, moving their way and so they were spared advertising their likely failure to get this. The ruling helped to resist the situation existing for 30 hours on 20-21 March when the EU27 appeared to be making an extension after 29 March contingent on MV3 passing on 25-27 March.
A central issue (foreseen in 2017) was the precipitating effect of the European Parliament elections. The UK was meant to be out before they happened (23 May in the UK) or perhaps before the new Parliament convened (2 July). Some of the UK seats had been allocated to other members; this would have to be put into reverse if the UK participated. Ministers start the election process in the UK by specifying the date; this would have to be moved by 11 April to allow the Electoral Commission to give on the following day 25 working days notice of the poll. The Council became fully seized of the significance of both 12 April and 22 May and let them drive their decisions.
The UK can no longer generate ‘concessions’ as the basis for a new vote on the deal, its approach for so long. Section 13 of the 2018 Act suggests that only documents agreed with the EU can be presented as part of the motion for ratification (and, not for instance, the ‘further domestic proposals’ mentioned by May to Tusk, or legal interpretation by the Attorney General). May seemed to think that a mere Council approval of the Strasbourg documents (which was done) would satisfy the Speaker, even though they were adduced in the motion for MV2. A better route would be to cite the extended dates as a substantial change (the Withdrawal Agreement states (art 185) it will enter into force on 30 March 2019 if ratified). Having had his moment, Bercow will be unlikely to stand in the way.
There is much talk of alternative paths being explored in the Commons, but if any of them are to happen the European elections must take place and that proposition will have to be supported by Jeremy Corbyn. In May’s eyes this may become something else that the House will vote against, so giving her the option of realigning with most of her party activists by leading the UK out without a deal and spending the next three weeks planning it.