European Council

Could Boris induce the EU27 to reject an extension?

Published: 9 September 2019
Author: Richard Parry

Richard Parry discusses the dangers of a Westminster-centric approach as opposition parties agree not to endorse a 15 October election.

Boris Johnson has made great play in his speeches of being given a specified text to write to the President of the European Council asking for an extension to Brexit (the Schedule to the European Union (Withdrawal) (No 6) Bill). But this provision gives him a lifeline.  Texts dictated by political opponents do not convey an authentic position, and it is easy to comply with the law by sending them while conveying real political wishes on a separate track.

The reason that the EU27 gave an extension to 31 October – rejecting a UK request to set it at 30 June and Donald Tusk’s recommendation of up to 31 March 2020 – is that on 1 November a new EU leadership team takes over. In theory, Johnson and the EU27 are in agreement that the issue must be resolved before November. This applies whether or not you think that the threat of no-deal would induce the EU to grant a more favourable deal, or whether the EU are now ultimately indifferent between the Withdrawal Agreement and no-deal and simply want the UK to choose.

The EU27 has to take what the UK political process presents to it. If still Prime Minister, it would be easy for Boris to say to the European Council on 17 October: ‘the House of Commons continues to give confidence to my government and has not approved an election in the necessary numbers. The 2019 Act obliges me to secure Commons approval for a deal or for no-deal exit, or else ask for an extension to 31 January. If we cannot agree a deal, I will not ask the Commons to approve no-deal as there is no chance it will pass. I will send the specified extension letter and it will be up to you to consider it. I agree with you that this must be sorted by 31 October’.

If the extension request (requiring EU27 unanimity) were to be refused, a no deal exit could happen without the approval of the Commons. There really are two sides here, and while MPs can compel a request they cannot compel an outcome.

This is the risk for opposition MPs if they carry through their agreement to reject a 15 October election. The best argument against 15 October is that the outcome may be inconclusive and that even if the Conservatives are perceived to have ‘lost’ an alternative government has only one day to take shape if Boris Johnson is to be prevented from attending the European Council as Prime Minister.

The Withdrawal (no 6) Bill gained a curious addition at its Commons committee stage on 4 September: an amendment by Labour’s Stephen Kinnock that the extension is to be ‘in order to debate and pass a bill to implement the [withdrawal] agreement…including provisions reflecting the outcome of inter-party talks’ [between Theresa May and Labour]. The division on this amendment was actually under way when no tellers for the no side were produced and so it went through, suggesting ambivalence about whether this nod to the 21 Conservative rebels and a body of opinion within Labour could safely be accepted. It answers the question about the purpose of an extension but cannot in itself secure the passage of a withdrawal bill.

Meanwhile on 5 September Leo Varadkar uttered the fateful phrase ‘near the border’ about one of the locations of animal and goods checks in Ireland if there were no deal. Extreme coyness about the talks between Ireland and the Commission about the permissible latitude on a normal EU border is lifting a little and they would burst into view on 1 November in a backstop-free context if no deal or extension is secured.

MPs have choices about an election date previously reserved to the Prime Minister, with fateful risks of getting it wrong – but political actors outside the UK also have views and interests.

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