The stark Brexit choice is now delay or no deal

If the prime minister is to be taken at his word that we will leave the EU come what may on 31st October 2019, we will be leaving without a deal. There are a number of pre-conditions imposed by both United Kingdom and European law to the completion of a deal—and the simple reality is that there is not time prior to 31st October to meet them.

The context

The prime minister has been clear that he will not re-present to parliament for approval the Withdrawal Agreement concluded by Theresa May which it has three times rejected. The consequence must be that, if we are to leave the EU with a deal, not only must our parliament consent but the European Council and European Parliament must offer a different Withdrawal Agreement.

The earliest moment at which any different Withdrawal Agreement might be offered by the Council will be at the conclusion of its meeting on 17th-18th October. We must thus assume that the earliest point in time at which a Withdrawal Agreement could be presented to parliament for its approval is 19th October (a Saturday, be it noted, a day on which parliament would ordinarily not sit).

That leaves 12 days within which to satisfy all the preconditions—in domestic law and in European law—for that agreement to be formalised. So what are they? Can it be done in time?

Domestic law

Let me deal with the domestic law preconditions first. They are set out in section 13 of the European Union (Withdrawal) Act 2018 and there are (at least; I leave aside the Constitutional Reform and Governance Act 2010 which may be swept up in the fourth) four.

First, parliament must have laid before it and approve the withdrawal agreement and the framework for the future relationship. Little has been said about the framework of late but it may be reasonable to assume that the prime minister will wish to re-negotiate it—and that parliament will need time to consider that renegotiated agreement.

Second, the withdrawal agreement and framework must be approved by a resolution in the House of Commons. On previous occasions, parliamentary debate over the withdrawal agreement has taken place over a number of days. Will a parliament prorogued for five weeks be prepared to accede to a short guillotine?

The third is that domestic law gives to the Lords up to five “Lords Sitting Days”—i.e. ordinarily excluding weekends—to debate the Withdrawal Agreement and Practice Direction before the Withdrawal Agreement can be ratified. And this period, importantly as a matter of law (see section 13(1)(c)(ii) of the Withdrawal Act of 2018), can only begin after the second precondition is satisfied.

The fourth (coming in section 13(1)(d)) is that, before a Withdrawal Agreement can be formalised, parliament must pass further legislation—which us wonks call the WAB or Withdrawal Agreement Bill—which “implements” it. As matters stand, no such Bill has even been seen by parliament but what we know—take it from the report by the almost pathologically restrained Institute for Government on that Bill—is that it will be “controversial,” will contain a number of “political flashpoints,” and that “past bills to implement major EU treaties have taken between 10 and 40 sitting days.”

The notion that all of these domestic requirements might be satisfied in the period from 19th October to 31st October is one for only the most devout optimists amongst us.

EU law

But that, of course, is not an end of the matter.

EU law also imposes a number of obligations which must be satisfied before 31st October if (absent an extension) the United Kingdom is to leave with a deal.

Those legal requirements are set out in Article 50 and are that the Agreement “shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.” So the European Parliament has to consent to the Withdrawal Agreement and only then can the Council, acting by a qualified majority, conclude it.

One might reasonably read the word “concluded” as assuming that the actions to be taken by the EU institutions will follow after the UK has ratified the withdrawal agreement.

However, history tells us that the Council is aware of the time sensitivity imposed by the deadline hard-wired into Article 50 and will respond, so far as it can, to those sensitivities. But, with the best will in the world, there is no getting around the fact that the consent of the European Parliament is clearly and explicitly required—and that the Council cannot conclude the agreement until the EU Parliament has consented.

There is a plenary session of the European Parliament on 21st-24th October 2019 but, for the same reasons that our own parliament, to discharge its responsibilities, will need to take time to consider any revised Withdrawal Agreement, so too will the European Parliament. It is a democratically elected institution, sitting at the heart of the European project, to which the European constitution attributes a critical function. It cannot and should not and will not abrogate that function. In practice it is likely to seek a recommendation from its Constitutional Affairs Committee (AFCO) for consideration in plenary and the next meeting of the European Parliament is not scheduled to take place until 13th November, with MEPs due to be away 28th October-4th November for the All Souls holiday.

The reality

Once one sets aside the rhetoric, the cold hard reality of the situation is clear. Even if one makes a series of generous assumptions—no further prorogation (a possibility the Lord Chancellor this very morning refused to rule out), a compliant UK executive and a compliant UK Parliament—there is no sensible world in which the preconditions set out above can be met in advance of Halloween.

If we are to leave on 31^st October then it will be without a deal.