Parliament is making crunch Brexit decisions this week. Having defeated the Prime Minister’s deal for a second time last night, MPs will tonight decide whether they support the UK proceeding to a ‘no-deal’ Brexit on 29 March. This seems likely to be heavily defeated, in which case the Commons will vote Thursday on whether the Prime Minister should return to Brussels requesting an extension to Article 50. Her preference has been to ask for a ‘short, limited extension’, ‘not beyond the end of June’. But while this would buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, there are many reasons to believe that MPs should demand a longer extension.
The most obvious reason to request an extension would be to negotiate an alternative deal that is mutually acceptable to the EU27, the UK government, and parliament. The Prime Minister continues to insist that her deal, somehow tweaked, is the only form of Brexit available. But last night’s defeat – by the overwhelming margin of 149 votes – suggests that a more significant rethink is required.
One option is that the government, rather than seeking to bring hardline Conservative Brexiteers on board, build bridges with Labour MPs to agree a ‘softer’ Brexit. But managing such negotiations, first at Westminster, then in Brussels, would take time. Crucially, after in-principle agreement of a deal by the Commons, legislation would have to pass through both chambers of parliament to implement what was agreed. This means that, under the terms of a three-month extension, a new agreement would have to be reached in a very few weeks, otherwise a further extension would soon be needed. Hence if MPs want a real opportunity to agree an alternative Brexit deal, pressing for a longer extension than the Prime Minister has so far proposed would be wise.
Many MPs believe that the Brexit deadlock will not be resolved without a further referendum, and pursuing this outcome is now official Labour Party policy. One proposal has been that the Commons should pass the Prime Minister’s deal on condition that it be approved in a referendum. If a different deal is negotiated (as above), gaining parliamentary agreement might require a similar commitment. In either case, a referendum would take time. Like the Withdrawal Agreement itself, it cannot simply be agreed in principle but must be implemented through legislation. As set out in a Constitution Unit report in October the various steps to a referendum would take around five months – allowing for the legislation to clear parliament, for the Electoral Commission to test the referendum question, and for the campaign period itself. Although a little time might be shaved off this timetable, there are limits unless the legitimacy of the referendum is to be brought into doubt. So those MPs who favour a further referendum need to note that it cannot be fitted into a three-month extension period.
Another means of consulting the public on the way out of the Brexit impasse would be some kind of wider consultation including a deliberative citizens’ assembly – as proposed by MPs such as Stella Creasy and Lisa Nandy, leading backbencher Yvette Cooper, and former prime minister Gordon Brown. Provided it was backed by Leavers as well as Remainers, this could get away from polarised debate between two sides, enabling members of the public to carefully consider the options and trade-offs. Such exercises have increasingly been used in Ireland ahead of referendums, to good effect. But aside from an exercise held by the Constitution Unit in autumn 2017, citizens have not yet been invited to deliberate in depth on what kind of Brexit they want. Of course, a citizens’ assembly would also take time. Six months would be needed, to set up a robust and independent process, recruit members, and allow them to deliberate over multiple weekends.
In planning, it is not just UK-level constraints that must be taken into account. There are also significant constraints at EU level. The European Parliament must endorse the Withdrawal Agreement before the deal takes legal effect, but is awaiting the UK parliament’s approval first. The current European Parliament meets for the last time in April, and a new Parliament will not be in place until July. This makes negotiation over the April–June period difficult.
A related complication is the fresh elections due to be held for the European Parliament in late May. The UK is not scheduled to participate in these elections, and they could prove very fractious if held in the current context. This is tricky, but lawyers suggest the UK could avoid the elections while still in the Article 50 period, provided the EU27 agreed.
In conclusion, an Article 50 extension of three months or less could avoid the immediate crisis of a ‘no-deal’ Brexit on 29 March, but beyond that its use would be limited. If MPs seriously want to renegotiate the deal, time is needed both for the renegotiation and for subsequent legislation – meaning we might soon need to request a further extension (which the EU27 might resist). There is thus a good case for a longer one-off extension, perhaps of 9–12 months. Notably, although some among the EU27 are rumoured to prefer a longer extension, MPs cannot rely on them to impose further delay if the Prime Minister gains a specific parliamentary mandate for something time-limited.
If the government proposes a motion to extend Article 50 for a specified short period, MPs who want a genuine rethink and a constructive solution may well want to amend it. They could seek to extend the deadline to some future date, or just to remove it altogether. This would leave flexibility for negotiations with the EU27, who will surely listen carefully to what parliament says.
Professor Meg Russell is Director of the UCL Constitution Unit, and Dr Alan Renwick is Deputy Director. A longer version of this analysis appears on the Constitution Unit blog