17 Oct 2019

17 October 2019 sees the start of the scheduled EU Council meeting in Brussels. It also marks the point at which the 31 October "exit day" is a mere 14 days away. 17 October is also significant because it is the date after which any vote of no confidence in the UK government under Fixed Term Parliament Act 2011, section 2(4) would trigger a 14 day period, ending after 31 October, within which a new government majority must be found if there is to be no early general election. Consequently, a government determined to fulfil its frequently-repeated promise to leave the EU on 31 October, "do or die" and "deal or no deal" could insist on remaining in place until it "Gets Brexit Done".

If the current government were to insist on remaining in office throughout the 14 day period allowed by the 2011 Act, then it would be highly likely to prompt a significant escalation in the current constitutional crisis. A House of Commons majority might, conceivably, be found for an alternative "caretaker" government, and that majority might be confirmed by a resolution. However, without an extraordinary intervention by the Crown, any such motion would fall short of the requirements of Fixed Term Parliament Act 2011, section 2(5). That provision requires a precisely-worded motion: "That this House has confidence in Her Majesty's Government". Unless the current government were dismissed, and new government formed, no such motion could sensibly be moved and approved.

Within the terms of the Fixed Term Parliament Act 2011, therefore, the government has successfully run down the clock to the point at which a vote of no confidence cannot be considered a reliable means to avert a "no deal" Brexit.

The Benn Act – extending the deadline

Given that any vote of no confidence would now trigger a process extending beyond 31 October 2019, attention must focus on the government's compliance with the terms of the EU(Withdrawal) (No 2) Act 2019 (the "Benn Act"). That Act set a deadline of 19 October, by the end of which the government must send a letter, in prescribed form, requesting "an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020". The government's obligation to send that letter applies unless, by the end of 19 October, it has secured either:

  • a House of Commons resolution approving a withdrawal agreement concluded with the European Union under Article 50(2) of the Treaty on the European Union; or
  • a House of Commons resolution approving Brexit on a "no deal" basis.

As the EU Council meeting begins on 17 October 2019, the prospects of a deal being approved remain unclear. Hours before the meeting's scheduled start the DUP indicated that its 10 MPs would not vote for a withdrawal agreement as they "could not support what is being suggested on customs and consent issues and there is a lack of clarity on VAT". The statement did, however, indicate that talks would continue. Consequently, it remains possible that the EU Council meeting might produce at least a deal with approval at a political level. If that were to happen, then the key question would be whether the full legal text of any such deal would be available in time for the proposed extraordinary sitting on the UK Parliament on Saturday 19 October.

The Benn Act sets out the condition that must be fulfilled in relation to any withdrawal agreement. It requires a Minister of the Crown to lay before each House of Parliament:

  • a statement that the United Kingdom has concluded an agreement with the European Union under Article 50(2) of the Treaty on European Union; and
  • a copy of the agreement.

A statement alone would not suffice. The House of Commons' approval must relate to the full legal text of the withdrawal agreement.

At the time of writing, the government has tabled a motion providing for Parliament to sit on 19 October. However, it is not certain that the motion will be put to a vote, or that it would necessarily pass if a vote were called. Consequently, there remain several areas of doubt as to the government's ability to avoid the obligation to request an extension to 31 January 2020. The government has also given undertakings to the court in Scotland, and the Brexit Secretary confirmed to the DExEU Select Committee on 16 October, that the government would "comply with the law".

Inevitable extension?

The letter prescribed by the Benn Act expressly states in relation to the proposed extension that: "If the parties are able to ratify before this date [ie 31 January 2020] the Government proposes that the period should be terminated early". Consequently, it remains possible that a deal might be reached and ratified within the proposed extension period. Indeed, it even remains possible that ratification could occur before 31 October 2019, allowing the government to meet its promise of Brexit on that date.

It is also possible that a short extension beyond 31 October would be presented by the government as a mere "technical" delay, not significantly detracting from its promise to deliver Brexit on time.

In either of those scenarios, it would be arguable that the principal benefit would be the availability of a transition period, whether up to the original date of 31 December 2020 or beyond, during which current laws, regulatory regimes and border clearance procedures would remain in place, allowing business time to prepare for a known outcome, rather than facing the imminent crisis of a "no deal" exit.

However, extension cannot be guaranteed. The UK government may request an extension, but the EU is not bound to agree. Much will depend on the EU's assessment of the UK political situation. An extension might be considered sensible if its purpose were to allow time for a general election or a further referendum. Equally, it might be considered undesirable if its effect were simply to prolong the current uncertainty – not least because 31 October 2019 also marks the end of the current EU Commission's term of office. Arguably, the new EU Commission might consider it more useful to bring the current phase of Brexit to an end, and to begin the real work of negotiating the future relationship between the EU and the UK.

Brexit: the long haul

Political developments between 17 October and 31 October are highly unlikely to mark the end of the Brexit saga. Ending the UK's membership of the EU is merely the opening stage. It would clear the way for negotiation of the future relationship. A "no deal" Brexit might set a contentious tone for those negotiations. Ratification of a withdrawal agreement might, by contrast, both soften the impact of separation by means of a transition period, and improve the dynamics of any talks. However, the Conservative party conference slogan, "Get Brexit Done" could not mask a reality that (given the Prime Minister's admiration for Churchill) might best be expressed through the 1942 observation: "Now this is not the end. It is not even the beginning of the end. but it is, perhaps, the end of the beginning".