For the third time, and in agreement with the UK, the EU has granted the UK an extension to its EU membership. But this extension feels different for two reasons.
First, the extension offered by the EU was a response to a letter sent – but not signed – by the UK Prime Minister Boris Johnson acting in compliance with the so-called “Benn Act” passed by Parliament to prevent the UK leaving the EU on 31 October without a Withdrawal Agreement unless Parliament so decided. The statutory letter asked the EU to grant an extension to the Article 50 withdrawal process until 31 January 2020. Despite some debate about a shorter extension to maintain pressure on UK MPs to pass the European Union (Withdrawal Agreement( Bill introduced to give domestic legal effect to the revised Withdrawal Agreement – and so pave the way towards the UK’s exit from the EU – the European Council took the simpler option of agreeing to the 31 January deadline. The European Council’s decision finesses this by stating that if the respective ratification procedures are completed prior to this deadline then the Withdrawal Agreement will enter into force – and the UK will leave the EU – on the 1st of the following month. However that possibility is in effect rendered redundant by the second difference with this extension namely that it is less about facilitating approval of a Withdrawal Agreement and more about creating time for an early General Election.
Prime Minister Johnson tried – and failed – three times to secure the necessary two-thirds majority among MPs to hold an early election in terms of the Fixed-term Parliament Act. Unless an extension was agreed with the EU, and with the PM having the power to set the date of the election, MPs did not trust the Prime Minister not to use an election to engineer a “No Deal” Brexit. However, with an extension given by the EU and inspired by a proposal floated by the Scottish National Party and Liberal Democrats, the UK Government introduced the Early Parliamentary General Election Bill to obtain an election on 12 December. Crucially it would only take a majority of MPs for the Bill to pass, with the Bill going through all its stages in the Commons in one day.
The SNP/LD proposal – and the Labour amendment to the Bill – suggested that an early election take place on 9 December meaning that Parliament would be dissolved on Friday 1 November. The Government’s preferred election date of 12 December would see Parliament dissolved on 6 November. The inclination of Opposition parties for the earlier date was designed largely to avoid the Government attempting to get its Withdrawal Agreement Bill passed by Parliament on an accelerated timescale before 6 November leading to a UK withdrawal from the EU on 1 December. Certainly, Opposition parties did not want Boris Johnson to fight an election having delivered Brexit. No doubt recognising that it would be difficult to get MPs to do what they previously refused to do, namely to back a programme motion to push the Withdrawal Agreement Bill through, the Government accepted that it would not be in a position to secure backing for its Withdrawal Agreement Bill. With the Article 50 extension also in place, the Government was able to resist attempts to bring forward the election and, provided there is not difficulty with the House of Lords, Parliament is set to make 12 December the date of the next UK General Election.
This will be the second early election called by a Conservative Prime Minister with a view to getting momentum behind their Brexit strategy. With a greater opinion poll lead than that currently enjoyed by Boris Johnson, Theresa May tried in 2017 to change the parliamentary arithmetic to ensure an easy passage of her Brexit policy through the Commons. Instead her party lost its majority with all that entailed in terms of her inability to get approval for her Withdrawal Agreement on multiple occasions and the influence the election result gave to the Democratic Unionist Party as her ‘confidence and supply’ partner.
The outgoing President of the European Council Donald Tusk tweeted that the adopted extension “may be the last one” with patience wearing thin with the UK’s continuing lack of clarity on its Brexit intentions. However, the outcome of a December election is no more certain that the situation in 2017. A swing to the Lib Dems is simply not going to see them take office and fulfil their commitment to revoke the UK’s withdrawal notification if elected. Even a 10% swing would only increase their representation in the Commons by a dozen or so seats. For the Conservative Party, Boris Johnson’s strategy is predicated on his party taking vote share from the Brexit Party and winning seats from Labour. But Johnson faces the loss of seats in Scotland to the SNP as well as those marginals that the Lib Dems might pick up.
If Boris Johnson fails to win either a working majority or to be in a position to form a minority government then the Brexit impasse won’t be resolved by the election and the UK may find itself it no clearer position on Brexit. That could give EU leaders pause to consider whether the offer of a fourth extension is really desirable. However, if Labour is able to command a majority or to form a minority government then a further Brexit referendum would seem inevitable and would require the UK to seek a fourth extension.
The prospect of a fourth extension is not a happy one for either the UK or the EU. It would also need to be for a longer period of time than the third extension of three months. Even assuming that a referendum was put together quickly, it is hard to see this taking place before June 2020. All of which is awkward given that had the Withdrawal Agreement entered into force, the UK and the EU would have needed to adopt by the end of June a decision on whether to extend the “transition period” for one or two years. As I explain here, is easy to forget that every single extension of the Article 50 process reduces the duration of the transition period and so limits the amount of time available for the EU and UK to do the really difficult work of negotiating an agreement on their future relationship. The prospect of an extension for a further referendum then begs the question of whether any transition period between exit and a new relationship has any real purpose. That may leave the EU with an uncomfortable choice between refusing a further extension – and so precipitating a No Deal Brexit – or offering a much longer extension to the UK’s membership with a view not only to facilitating a further referendum but potentially opening negotiations that would deal with withdrawal and the future relationship in one package, something which the EU has said it could not do.
Whether or not the UK leaves the EU on 1 February 2020 is largely dependent on the electoral performance of the Labour Party. Labour has been in Opposition for almost a decade. That period has seen the austerity policies of the Conservative-Liberal Democrat Coalition Government followed by the intensely divisive 2016 EU referendum of David Cameron’s Conservative Government. His Conservative successor Theresa May threw away her party’s parliamentary majority and ultimately failed to forge a political consensus on Brexit. The current incumber of No 10 has a certain charisma and is no doubt self-confident after the revision of the terms of the Irish Protocol. But he is not trusted by many and scandals about his personal life and business connections may yet tarnish him. The Windrush affair and the repercussions of the Grenfell Tower tragedy also hang over the Conservative Party. This ought to be an election that any credible major Opposition party should win.
On 13 December it should be clearer whether this is Boris Johnson’s or Jeremy Corbyn’s time of political triumph. But will it be Brexit Time?