Can Theresa May really delay Brexit votes until the Autumn?

The government’s Brexit legislative timetable—already ambitious—is becoming increasingly compressed. This raises serious questions about whether the UK’s statute book will be ready for exit in March 2019.

The decision to leave the European Union means that the UK will take over responsibility for setting policy which was previously set by the EU, for example on agriculture, trade and customs. This will require new legislation to establish post-Brexit policy frameworks—and Brexit bills dominated the Queen’s Speech. Since the eight announced last year, a further four have been added.

But introducing more bills has not meant more progress. No bill has yet become a Brexit Act. Six are yet to be introduced, and we are still waiting for (very) long-promised white papers on Migration and Fisheries. Two—the Customs and Trade bills—have been missing in action since committee stage in the House of Commons in January. The government has not yet told us when the Commons might have another chance to look at the EU Withdrawal Bill, after a number of significant changes were made in the Lords.

The overwhelming impression is that the government is managing legislation not to ensure the statute book is updated in a timely and orderly way for Brexit, but to avoid embarrassing defeats in the Commons: in particular, to avoid giving a possible Commons majority on creating a customs union—the subject of amendments to both the Trade and Customs Bills—a chance to mobilise. But beyond giving the impression that the government is doing its best to duck difficult arguments in parliament, does a delay to the Brexit legislative timetable really matter?

The provision for a “standstill transition”—where the UK will have left the EU but will continue to follow EU rules—in the current draft of the Withdrawal Agreement would offer some breathing room for the government because new powers would not be necessary until after December 2020.

In this scenario, the only bill which would need to receive royal assent by March 2019 would be the legislation the government has promised to put the Withdrawal Treaty into domestic law—the Withdrawal Agreement and Implementation Bill (WAIB). This bill will be introduced after parliament has voted on an initial motion as to whether they want to reject or approve the withdrawal agreement and the framework for the future relationship. If the government chooses to delay the EU Withdrawal Bill—a separate bill which is currently working its way through Parliament and is necessary to repeal the European Communities Act 1972 and copythe provisions of EU law into UK law—then it could potentially include certain provisions in that bill which need to be in place by March 2019 in the WAIB.

However, delaying the rest of the Brexit legislation risks the first vote testing parliament’s view on leaving or remaining in a customs union being the so-called “meaningful vote” on the Withdrawal Agreement. This has the potential to cause a massive headache for the government. Even David Davis has admitted that that motion can be amended, so it will not be the simple “take it or leave it” that was once suggested. That means parliament could amend the motion to issue negotiating instructions to government. Waiting to find out what sort of Brexit commands parliamentary support until October at the earliest is therefore a high-risk strategy.

The government will not be able to avoid parliament on Brexit forever, and delaying votes on membership of the customs union may mean the government will only be forced to listen after negotiations with the EU are concluded. The problem with this is that even if parliament votes to send the government back to Brussels to extend Article 50 and renegotiate withdrawal, continuing these negotiations is dependent on the EU’s willingness to do so. This could leave the Government in a very challenging position: unable to get the withdrawal agreement through parliament but unable to renegotiate with the EU.

Complicating this timetable even further is the prospect of a “no deal” exit. Although the draft withdrawal agreement text contains provisions for a “standstill transition,” “nothing is agreed until everything is agreed.” Therefore the risk of a no deal scenario, although reduced, has not entirely gone away. If this happened all the legislation currently in the pending tray would need to be rushed through in a matter of weeks to ensure a functioning statute book after exit day. That would be a recipe for many mistakes, scant scrutiny, and lots of legal gaps and faultlines after Brexit.

So the prime minister can delay, though not forever. But the less progress she makes now, the bigger the potential pile-up later.

Maddy Thimont-Jack works at the Institute for Government