So this is how it seems things stand to me. I’m not sure this is all completely right, so feel free to correct me, or take issue with any of it. (I don’t claim to be an expert on British Parliamentary procedure.)
The media, I note, have failed to do any serious research on this matter, even though the country’s future depends on it.
The European Union (Withdrawal) Act (EWA), passed in 2018, sets down in British law 11pm on March 29 as the time the UK leaves the EU. This ‘exit day’ cannot be changed by Parliament simply voting to change it. It cannot even be changed by the UK and the EU agreeing to extend the Article 50 process. It can only be changed, assuming the EU has agreed a delay with the UK, by a Statutory Instrument to modify the EWA that would have to go through the Commons and the Lords. (I don’t know if anything else is required on the EU side, but I’m assuming not.) An SI allows primary legislation – in this case the EWA mentioned above – to be modified, without having to go through all the procedures that primary legislation (the Act) requires.
There are currently nine possible sitting days left before 11pm on March 29. Is that enough time to pass the Statutory Instrument through both houses? I don’t know, but I’m presuming that won’t be easy. Apparently government lawyers have already started drafting it.
But as yet there is no agreement with the EU. Assuming that even the government isn’t going to try to pass legislation that changes the exit day to something open-ended before any agreement with the EU is reached, the relevant SI will have to wait until an agreement with the EU is reached. When would such an agreement happen? The EC (Tusk, Junker and the heads of state) is meeting this Thursday, the 21st, to discuss (amongst other matters) Brexit, so it’s possible that an agreement could be reached that day. That’s the suspicion amongst those who think that stitch-up is afoot.
That would leave six days to pass the SI and have the exit date legally changed, which would enable the delay. That doesn’t seem like a lot of time to get it through both Houses. But SI don’t need the sort of Royal Assent that Acts do. (It would really scupper things if it did – with the EWA there was six days between Parliament passing the Act and the Queen ratifying it.) I think the Queen possibly may have the power to do stop the SI if she really wanted to, but after a lifetime of her not ever getting involved in power, I don’t hold out much hope of that.
But the government only gets six days if a delay is agreed this Thursday (and assuming they can get then it to Parliament by Friday, which I don’t think they can actually do). But it’s not a foregone conclusion that an agreement will be reached on Thursday. Although I expect the EU countries will do what they’re told by Junker and Tusk – because the EU rules Europe now, not any of the national leaders – there might be some quibbling about it, which will take away some days. Every day of quibbling is one day less for the UK government to get its SI through.
One country might demand X, one might demand Y. The UK will have to consider whether to accept these, or stand firm. The EC may demand more clarity on why an extension is to be granted. There also may be a heavy financial price exacted by the EU for any delay, although they may now drop that if they’re desperate for it to happen. And also there may be some fighting over the length of the delay. Will all the EU really be okay with a long delay? As I said, I expect the EU commisars will call shotgun over the EU countries in regards to this, so if the EU wants a long delay, and assuming May is asking for a long delay (latest reports say she’ll ask for 9-12 months), then a long delay will be agreed. But unless the stitch-up is already in place, which it may well be, a few days could be lost, so the SI can only be presented next week.
It’s also possible that the EC will draw out the process before granting the extension in order that the extension won’t have time to pass in the British Parliament, so means that the EU can get shot of the UK (if that’s what they really want) without it seeming like they did that deliberately, and so they won’t get the blame for any No Deal problems for their counties that subsequently arise. They can reasonably blame the British for taking too long.
(There are also reports that Italy may vote against the extension, which would be great, but we can’t rely on that. But they may be able to drag out a few vital days for us with arguments.)
Presenting the SI next week is really cutting it fine. If the ERG can string out the process then time may well run out for the government, although Bercow will no doubt be doing his best to stop them (expect him to become the government’s friend again next week).
There is also the possibility of legal action against the government if they seek a long delay to Brexit, as there is no Act of Parliament authorizing May to ask for that. There hasn’t even been a Parliamentary vote on it — the vote last week said nothing about a long delay (and was mainly concerned with getting a delay if May’s WA passed in order for the necessary legislation enabling the WA to be enacted — it didn’t specify any other reason). However, in practice legal action is unlikely to slow things down, although it would be worth a try by any Brexiteer with deep pockets.
So let us assume that a vote goes ahead next week concerning the proposed long delay to the exit day. There is no guarantee that all of Labour will vote for that. Labour have mostly been keeping out of it and letting the Conservatives cop all the flak, making them and not Labour own the WA, but a crunch vote on a long delay will put them in the spotlight. Voting for a long delay will be seen, reasonably enough, as an attempt to stymie Brexit. And that’s not something the old Labour Eurosceptics in charge of the party want to be seen doing, or even want to do. It’s not something the Labour MPs in Leave-voting constituencies want to be seen doing, especially as an early election may well be looming.
So while there may be a majority of Remainers and anti-No Dealers in Parliament, getting a majority of MPs to vote for a long delay will not be easy. Both Labour and the Conservatives could be destroyed by voting for it. The country would erupt. An early election would probably be held, and those who voted for the delay would mostly lose their seats.
So while voting against a delay (which would basically be voting for No Deal) might seem like a tough ask for a lot of MPs who personally don’t want it, and who are frightened that the country is not ready for a WTO exit, voting for a long delay would be a nuclear option. Totally nuclear. Forget the vote last week against No Deal. That was non-binding, and in a different context, where the WA was still in play (which would have been the main reason for a delay), and it said nothing about a long delay, and those who voted for it knew that it was still ultimately up to the government to ask and negotiate a delay, which would deflect some of the flak from Parliament. But this vote would be the real thing. This would be a direct vote on the future of Brexit, and all the MPs will be horribly exposed by it.
Not that I’m confident that a long delay would be rejected by the Commons, but it’s no foregone conclusion. Although given the treachery displayed by MPs recently, most of whom are loyal the EU rather than the UK and its people, we’d be right to be worried.
You might think that the Lords are in an easier position, as they’re not subject to democratic votes and so can more easily ignore the people, but in fact the Lords would be in a very precarious position. If the House of Lords votes for a long delay it may have signed its own death warrant. At the very least it could see major reforms coming its way, and quite possibly total abolishment, and replacement by an elected upper chamber.
Another option open to Brexiteers is to vote with Labour in a no-confidence motion, or at least to abstain. Some ERG members have reportedly hinted at that. If the government loses a vote of no-confidence then there is 14 days in which MPs can try to find a majority grouping, otherwise an early election campaign will start after the 14 days.
However, while I previously thought that this was an option that would stop May in her tracks, I now find that this isn’t so:
The Act provides no guidance on what occurs during the 14-day period following an Fixed-term Parliaments Act 2011 no confidence motion being passed. As the Clerk of the House told us, what occurs during this period is a matter politics, and not of procedure. Evidence to this inquiry and the Cabinet Manual set out that the Prime Minister would be expected to continue in office unless someone else could command the confidence of the House. If someone else could command the confidence of the House, the Prime Minster would be expected to resign (p. 3).
So it looks like it isn’t the case that everything would be suspended for 14 days. The PM could still continue to operate during that time unless someone else wins another vote of confidence, and the only person who could possibly win such a vote would be Jeremy Corbyn, and who knows what he would do?
There are also reports that ERG members are threatening to stop voting for government legislation if the PM tried to get the EU to agree a long delay. So that’s another possible tactic.
The final piece of the jigsaw is the public. Will we see some of the threatened direct action, like a lorry blockade, take place, or is that just talk? The more of that sort of thing the better, because it will remind MPs of the anger that is out there at their now-blatant attempts to stop Brexit.
Update: According to Wikipedia there are committees who will look at Statutory Instruments, although I don’t know how much this will delay things for.
There’s also some more on SIs here at the UK Parliament website, but it doesn’t give me a sense of how quickly the government could get the Brexit delay SI through.