The news sometimes tells us that "we're less than six months away from Brexit", which might still sound like a long time, but there's a lot to be packed into that period. This post attempts to outline the process in the UK, then to fit it in with the way the EU expects to handle it. And finally, what if this finely tuned machine falls apart at some point?
I still think leaving the EU is the wrong thing to do, and that it's being done badly, but hey ho, this is what I think is going on.
It's the law!
To get the ball rolling, a government minister must present three things to the House of Commons and the House of Lords:
- a statement that agreement has been reached
- a copy of the withdrawal agreement
- a copy of the framework for a future relationship
The next stage is for Parliament to approve the two documents. The Commons has to pass a resolution and the Lords has to debate a motion (the elected house's resolution is more powerful than the Lords' motion, but is still just a Yes/No to the government's proposal, with no consideration of options). Finally another law - a Withdrawal Agreement and Implementation Bill laying out how the withdrawal agreement is to be implemented - must be passed.
If possible, the Commons resolution must be agreed before the EU Parliament votes on approving the withdrawal agreement, which I've heard is a sequence acceptable to the EU27, though there is no such formal requirement in Article 50.
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| "If push really comes to shove, and they try and push Chequers through the House of Commons, then I and my colleagues will vote against it," |
Here's one of the contentious points. This statement has to be "considered" by the Commons and the Lords within seven sitting days. The Lords must "take note of it" and the Commons must debate a "motion in neutral terms". This parliamentary language is intended to prevent either house from intruding on the government's plans to proceed. When Dominic Grieve caved in and this language was accepted, there was much debate about whether and how the Commons could intervene nonetheless to prevent a departure with no deal, but nothing is certain at this point.
Any of these statements of failure might in theory lead to a return to the negotiating table or... what?
As far as I can see, the law says nothing about what is to be done if the UK Parliament approves the documents but the EU Parliament doesn't, or the agreement falls at the final hurdle of a vote by the EU Council (without the UK). As we'll see below, either of these developments could occur after the 21 January deadline, though they must be considered unlikely, since the agreement would have been agreed by the Council (with the UK) before going to Westminster, and the EU Parliament will have been kept informed of progress.
The enormous amount of work required if there's no deal is outside the scope of this post (and probably the scope of human consideration).
Is there time?
The formally agreed timetable still assumes that the final withdrawal agreement (and whatever level of framework for the future has been produced) will be considered by the October EU Council summit, but it's fairly generally assumed that it won't be ready by that point, and that a special meeting will be required in November. EU Council president Donald Tusk has told us he's happy to organise it. I've pencilled in 13 November because it's the only date I've heard, but talk around the recent Salzburg meeting was that it would probably be a couple of days later [Update 18 October 2018: the emergency summit has not been scheduled because the October summit (or rather the negotiations leading up to it) have achieved very little.].
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| Sources: 2018 plenary sessions. 2019 plenary sessions. council meetings |
Let's assume, therefore, that a Brexit agreement is available by 19 November and that everybody is still aiming for 29 March as the end date.
How much time would it take the Commons to consider something like a 150-page withdrawal agreement - this is an international treaty document - and a 20-page political statement on the future UK-EU relationship? The latter would not have treaty status, but could be the thing most of our MPs, media and fellow citizens are watching out for. How many committees would demand a period for consideration, to inform the eventual votes? The government would want to allocate as little time as possible, inviting the minimum intervention by elected members, but any MP who wouldn't object to such cavalier behaviour should be ashamed of him- or herself.
Assuming for the moment that the UK Parliament will be at it hammer and tongs when an agreement arrives (in fact, of course, the poor little mites will have to take their usual holidays - a few days off in November, three weeks for Christmas and never working on Fridays) let's look at what will be going on in the EU.
If the EU Parliament does refrain from discussing the agreement before the UK Parliament has finished with it (and can we really imagine that no parliamentary committee will start early, arguing that it's a plenary session which will make the final decision?) we could be well into 2019 before detailed consideration begins. Of course the MEPs have been kept informed of progress in negotiations by frequent updates to party group leaders and other briefings by Barnier (unlike our own MPs, many of whom don't seem to have the faintest idea of what's going on - job done, says May).
A Reuters report tells us how the EU Parliament sees the approaching buffers: "A European Parliament plenary session on 11-14 March 2019 will be the last possible in order to endorse any Brexit deal on time, Polish MEP Danuta Hubner, head of the European parliament's constitutional affairs committee, told fellow MEPs Monday... The parliament's meeting 25-28 March would be too late because the Council also must approve it, she said. The UK is set to leave the EU on 29 March."
And when it's all signed off, Michel Barnier can take a holiday or retire, because that will be his job done. The Commission will then take over in the normal way if there's a trade deal to be negotiated.
If it doesn't work
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| Customs post at Killeen/Killean Co Amagh, 1960s via @OldIrelandPics on Twitter |
There's also talk of elections and referendums, following months of work by the People's Vote campaign and a Labour conference where Brexit was under the spotlight more than antisemitism for a change. The passage in Jeremy Corbyn's conference speech which offered to support or take over May's negotiations has attracted a lot of attention:
"But let me also reach out to the Prime Minister, who is currently doing the negotiating.
"Brexit is about the future of our country and our vital interests. It is not about leadership squabbles or parliamentary posturing. If you deliver a deal that includes a customs union and no hard border in Ireland, if you protect jobs, people’s rights at work and environmental and consumer standards - then we will support that sensible deal. A deal that would be backed by most of the business world and trade unions too.
"But if you can’t negotiate that deal then you need to make way for a party that can."
Those, including some 150 constituency Labour parties, who worked to ensure that the possibility of a further vote was included in the motion (and will be disappointed that the possibility of a Remain option in that vote wasn't explicitly included) will fear that Corbyn is ready to ignore that option, but a different kind of interest is being shown elsewhere.
If Corbyn managed to contribute (most of) the Labour vote in the Commons to support (most of) May's MPs to approve "her deal" the timetable above would do, but much of the discussion around the Labour conference was on their demand for a general election, or "campaigning for a public vote" on "the final Brexit deal" if that doesn't work. The only part most media outlets quoted was the paragraph on a referendum, but the motion which was passed on Tuesday was 570 words long and I didn't see anybody pick up the sentence "Conference believes we need a relationship with the EU that guarantees full participation in the Single Market".
The next elections to the EU Parliament will take place between 23 May and 26 May, so the amount of time by which the Article 50 process could "easily" be extended is pretty limited. There is no plenary session of the parliament planned until July and it would be a new Parliament with at least some new members, so picking the Brexit process up again would be quite a task. There would also be a new commission, with Jean-Claude Juncker's replacement as president newly (indirectly) elected too.
Everybody is currently working on the assumption that the UK will no longer be a member state by May, and there are therefore 73 seats in the Parliament to be distributed among other members. An Irish border question which doesn't have to be dealt with in a withdrawal agreement is how the Republic will deal with their extra two seats. It was announced on Monday that one would go to the Dublin constituency and one to the Southern Constituency, with a couple of counties "moving south" to balance the numbers.
The new Commission president will not be Michel Barnier, we can be sure of that. By coincidence an announcement from Mr Barnier came out today to the effect that it is his "duty and responsibility to continue the#Brexit negotiations right to the end" and he will therefore not be running for selection as the European People's Party lead campaigner in the elections.
In the event that the Brexit saga ended with a referendum which chose to Remain, and the Article 50 notification was revoked (assuming that is legally possible) we'd never have left and we'd simply remain a member of the EU under our current terms (though with far less good will). But not only would the UK have no MEPs at that point, there wouldn't actually be places in the Parliament to accommodate any new ones. Also, an aspect of the EU (Withdrawal) Act that I only noticed recently is that, though it repeals the European Communities Act 1972 (the fundamental law which recognises EU treaties and law) only on Brexit day, other laws were repealed on the day it was enacted, and one of those was the Act which makes the holding of elections to the EU Parliament legal.
This Brexit thing could continue being a mess far longer than anyone thought.
Jeremy Corbyn’s #Brexit announcement will be read with interest in EU. Angela Merkel understood to believe #Chequers proposal on common rule book for goods could work if UK joined a customs union @BBCNewsnight— Nicholas Watt (@nicholaswatt) September 26, 2018
If Corbyn managed to contribute (most of) the Labour vote in the Commons to support (most of) May's MPs to approve "her deal" the timetable above would do, but much of the discussion around the Labour conference was on their demand for a general election, or "campaigning for a public vote" on "the final Brexit deal" if that doesn't work. The only part most media outlets quoted was the paragraph on a referendum, but the motion which was passed on Tuesday was 570 words long and I didn't see anybody pick up the sentence "Conference believes we need a relationship with the EU that guarantees full participation in the Single Market".
An election or referendum might come out of any of the ways the process might fail to achieve an agreement by 21 January or in later chaos (May is determined not to go there, but who knows what the atmosphere might be by then?) and you can't do either of those in a few days.
Last year's snap election took place seven weeks after the announcement, and it couldn't be squeezed much more than that. Of course there's a body of law governing an election, but each referendum needs its own new law. How much backing would there be behind a decision to go that way? How much time would it take to get a bill through and agree a question with the electoral commission?
There would be calls to extend the electorate to include 16-17-year-olds, British expats absent for more than 15 years (as promised by Cameron in 2015) and EU27 citizens; or to restrict it further by removing Commonwealth and Irish citizens from the roll. The electoral commission would request a six month period between enactment and vote, and the commission itself needs a major overhaul with much stronger powers, as shown by the law-breaking during the last referendum campaign. Most of these demands would almost certainly be refused, but even so it would take quite a time.
Last year's snap election took place seven weeks after the announcement, and it couldn't be squeezed much more than that. Of course there's a body of law governing an election, but each referendum needs its own new law. How much backing would there be behind a decision to go that way? How much time would it take to get a bill through and agree a question with the electoral commission?
There would be calls to extend the electorate to include 16-17-year-olds, British expats absent for more than 15 years (as promised by Cameron in 2015) and EU27 citizens; or to restrict it further by removing Commonwealth and Irish citizens from the roll. The electoral commission would request a six month period between enactment and vote, and the commission itself needs a major overhaul with much stronger powers, as shown by the law-breaking during the last referendum campaign. Most of these demands would almost certainly be refused, but even so it would take quite a time.
Whether for an election or a referendum (or indeed a request to buy a little more time for negotiations that are nearly complete) the Article 50 period would have to be extended. Who would make the request? That would depend on the state of chaos at the time, but it would presumably be whoever was prime minister by then. Replacing May would take a couple of months too, unless - say - her government resigned and "another party leader" took over without an election, or this "emergency" forced the Conservative party to bypass the rules even more than it did to select May herself. It would also be necessary to amend the EU Withdrawal Act, which currently defines "exit day" as 29 March.
The current EU27 negotiating directives - the source of Michel Barnier's mandate and the special competence which allows him to produce an agreement which doesn't need ratification by the 30-ish national and regional governments - set a date of "at the latest 30 March 2019 at 00:00 (Brussels time)" which would presumably have to change too.
Everybody is currently working on the assumption that the UK will no longer be a member state by May, and there are therefore 73 seats in the Parliament to be distributed among other members. An Irish border question which doesn't have to be dealt with in a withdrawal agreement is how the Republic will deal with their extra two seats. It was announced on Monday that one would go to the Dublin constituency and one to the Southern Constituency, with a couple of counties "moving south" to balance the numbers.
The new Commission president will not be Michel Barnier, we can be sure of that. By coincidence an announcement from Mr Barnier came out today to the effect that it is his "duty and responsibility to continue the
In the event that the Brexit saga ended with a referendum which chose to Remain, and the Article 50 notification was revoked (assuming that is legally possible) we'd never have left and we'd simply remain a member of the EU under our current terms (though with far less good will). But not only would the UK have no MEPs at that point, there wouldn't actually be places in the Parliament to accommodate any new ones. Also, an aspect of the EU (Withdrawal) Act that I only noticed recently is that, though it repeals the European Communities Act 1972 (the fundamental law which recognises EU treaties and law) only on Brexit day, other laws were repealed on the day it was enacted, and one of those was the Act which makes the holding of elections to the EU Parliament legal.
This Brexit thing could continue being a mess far longer than anyone thought.
