Brexit: end of the line

17/03/2019

Basically, it's down to the MP collective on Tuesday. If they vote for the Withdrawal Agreement, that then frees Mrs May to go to Brussels and ask for a short extension to give time to get all the necessary legislation in place.

Some former refusnik MPs are said to be changing their minds. Others, such as Owen Paterson, are not. To judge from Paterson's issue-illiterate screed in the Telegraph, though, he hasn't thought it through, and still labours under the belief that no-deal is a credible option.

It's what happens if the collective rejects the Withdrawal Agreement for the third time – which seems most likely – that's got everybody guessing. Scenarios vary wildly, ranging from Mrs May stepping down and being replaced by a hard-liner, to the European Council agreeing to a two-year standstill to allow the UK government to rethink its strategy.

Should Mrs May be looking for a short extension after approval of the Withdrawal Agreement, the smart money is on the European Council agreeing with little difficulty, shunting Brexit day to as late as 1 July, whence we enter the transitional period and a no-change scenario until the period has ended (with or without further extensions).

However, in anticipation of another rejection, it seems that sentiment in Brussels is hardening, with the "colleagues" more likely to treat the UK as a "disruptive child", possibly refusing to grant any extension, precipitating us into a no-deal Brexit on 29 March - in a mere 12 days.

Personally, I think pragmatism will prevail and we'll get a short extension, at the very least – purely on the basis that the EU Member States need more time to prepare for a no-deal. But what looks increasingly unlikely is the "colleagues" agreeing to the long option.

That isn't stopping Mrs May using the threat of a long delay to Brexit as pressure to induce her MPs to vote in her favour, arguing that any delay past 1 July will require the UK to take part in the European Parliament elections – which is probably the case.

The dates for elections have already been set and the requirement to hold elections is set out in EU law, most recently Council Decision 2018/994. If the UK is to remain in the EU via an extension to the Article 50 period, then it is obliged to implement EU law. And while this could be waived for a Member which is on its way out in a matter of weeks, this is less tenable if the delay is prolonged.

Despite that, it is unlikely that default would automatically precipitate the UK's departure, even if the UK was in breach of treaty provisions as well as breaking EU law. After all, the treaties afford every citizen of the Union "the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides" (Article 39, TFEU).

The normal procedure to deal with a breach would be for the Commission to commence infringement proceedings, while there are a number of temporary fixes that could be arranged to keep the European Parliament functioning in the absence of elected UK members, requiring no more than a Council Decision to implement them.

The long delay, therefore, is probably less of a threat than Mrs May (or the media) imagines. The most likely outcome is a short delay scenario, followed by a no-deal exit on 1 July. Happening just as we move into the holiday period, the timing could not be more conducive to maximising cross-Channel disruption, as tourists get caught up with commercial traffic.

Nevertheless, this puts the no-deal scenario at the top of the list, confounding those many MPs who have deluded themselves that they have voted it off the table. All it needs is a frustrated or impatient European Council to sit on its hands and do nothing and the default date of 29 March automatically kicks in, leaving Mrs May only one option to stop Brexigeddon: revoking the Article 50 notification.

Arguably, that makes the choice on Tuesday as between a no-deal exit on 29 March, a short delay and then a no-deal on 1 July (or a little earlier), or no Brexit at all - in effect, no deal or no Brexit, with no certainty as to which way we go – notwithstanding that to stay in the EU would require the repeal of all the Brexit-related legislation.

Here, there is an interesting possibility that has scarcely, if at all, been rehearsed. Currently, under the doctrine of Crown prerogative, Mrs May does not need parliament's permission to revoke the notification. In a fit of pique, even, she could e-mail the letter to Donald Tusk at the eleventh hour and fifty-ninth minute – even letting the seconds run down before hitting the send button.

That alone, though, would not end the exit process. Parliament would then have to cooperate in rescinding all the Brexit legislation, otherwise Brexit day stands and the European Communities Act would be repealed. That would deprive the government of its power to implement EU law.

Recently, we've been hearing much about the Vienna Convention on the law of treaties, and in particular Article 62 on "fundamental change in circumstances" in relation to the backstop.

Although some are warning against attempts to use this Article – it being marked down as an "utterly hopeless" endeavour – in the absence of parliamentary authority to implement the EU treaties, arising from refusal to repeal Brexit legislation, a different scenario could apply.

In this case, we could see Article 61 apply: "Supervening impossibility of performance". This states that a party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it, if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.

Whether lack of parliamentary approval qualifies as "permanent disappearance or destruction of an object indispensable for the execution of the treaty" is one for the lawyers to argue, but on the face of it, Mrs May doesn't necessarily get a free ride if she wants to call the whole thing off.

One person who is getting a free ride, though – at least from the media – is Nigel Farage. He has re-emerged from the woodwork to front a protest march from Sunderland to London, walking the first leg only, before disappearing.

Having done nothing since the referendum (or before) to promote an orderly exit, focusing instead on personal enrichment, he now gets sympathetic headlines from the likes of Sky News about being "betrayed" over Brexit. Yet, if anyone has betrayed the Eurosceptic movement – in not pursuing a coherent exit strategy – it is Nigel Farage.

But while Farage postures, Mrs May is back in print, telling Sunday Telegraph readers from behind the paywall that, "the patriotic thing for MPs to do is vote for my deal".

Observing that "voting against no deal does not of itself change the legal reality that, as things stand, a failure to agree a deal ultimately means we leave without one", Mrs May will probably not reach the last of the refusniks, who have convinced themselves that there is nothing to fear from a no-deal.

Since it is unlikely that many Labour MPs are going to read the Telegraph, she is probably speaking to the wrong audience. Thus, although she talks of Brexit as "a prize well-worth striving for", claiming that it is "well-within our reach", we seem as far away as ever.

This is more so as The Sunday Times has an entirely different take, having Mrs May tell us: "Back my Brexit or UK will never leave". She is to tell Brexiteers they have until Thursday to support her or risk a "collective political failure" in the form of a "Hotel California Brexit" where "you can check out but you can never leave".

One thing the paper has right, though, is its editorial which declares that: "The time for playing games is almost over". Tory MPs, the paper says, "have it in their hands to prevent outcomes that would be much worse, for them, than accepting Mrs May's withdrawal agreement". They should, it concludes, "face up to their responsibilities". The games can be left to the likes of Farage.