Theresa May’s opportunity to outfox us?

The emphasis on avoiding No-deal and on extending the Article 50 time-table presents Theresa May with a clear opportunity to outfox us. We have to focus on Remain and the referendum, writes London4Europe Committee member Michael Romberg.

***  amended 4 March 2019 to make clear that the EU could not conclude the agreement without the UK having ratified it first *****

What people are trying to do

People have been mesmerised by the threat of No-deal. Sure, it would be really bad. A third of the country wants it to happen. It could happen by accident. It is the default legal position.

But very few MPs want it. For all her faults Theresa May has a sense of responsibility, even if it is selective. So in spite of the rhetoric it is hard to believe that the Government would actually be willing to countenance No-deal.

Theresa May presents her deal as the way to stop No-deal. The main focus of non-Government efforts is delay: an extension of the Article 50 time period to allow more debate. But it’s not as though we have been short of time: 30 months was quite enough for a serious debate of options and the building of a consensus. What we have not done is face up to realities and policy trade-offs – we seem to need deadlines to even begin to do that. Nor is there any point in an extension for a general election – that could not resolve Brexit.

Separately, once we have agreed a course of action with the EU we will need time to implement it.

The EU’s views

The EU is like everyone else. They will agree to something to please someone else if it is in their own interests.

Brexit is a tedious distraction and they wish it to be over. But they also wish to avoid No-deal, and the blame for it. Having the UK stay in the EU is also something the EU would like, although perhaps increasingly said through gritted teeth. Preserving the integrity and coherence of the Single Market and EU institutions will not be sacrificed for the sake of keeping one country in.

An extension to before the date of the European Parliament elections (23/26 May 2019) would be easy. An extension to the end of June 2019 (before the new Parliament session opens on 2 July 2019) would probably also be easy if Brexit had been confirmed so it is clear the UK would not take part in the EP elections.

Any longer extension would be difficult because the UK would need to hold EP elections and send MEPs for a time. So the EU would only agree to that if it was in their interests (like a referendum with a Remain option).

The EU clearly see the existing deal as the best available way to prevent No-deal.

The Withdrawal Agreement as a mechanism

So far the focus has been on an extension of the Article 50 negotiation period. That would require the agreement of both the UK and of all EU27 member states. But there is another way: the Withdrawal Agreement could come into force on whatever day is chosen.

Article 50(3) provides: “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification [of the intention to withdraw], unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

Here is an opportunity for Theresa May to boost Westminster support for her deal. She could change the exit date in the Withdrawal Agreement to May or June. Perhaps the European Parliament would have formally or indicatively given its consent. The European Council on 21-22 March could make clear that they would approve the new date in the Agreement and conclude the deal subject to ratification by the UK.

Theresa May could then return to Westminster. She can say again that it is her deal or the chaos of no-deal. She could argue that there is no longer time to obtain an extension of the Article 50 period; the clock would have run down. The EU Withdrawal Bill - necessary for the ratification of the treaty  - could be passed quickly. No Brexiter would object to a delay of a couple of months if Brexit had been settled.

It is not hard to see a majority of MPs backing her. We would have lost.

Revocation is not an option

EU institutions had been very worried about the use of Article 50 revocation as a device to get round the unanimity requirement for an extension of time.

The ECJ ruled out revoking Article 50 in order to obtain an extension of the negotiating period by the judgment’s “unequivocal and unconditional” provision.

Focus on our priorities

So let’s ignore No-deal and focus on the real strategic objective: Remaining in the EU; and the strategic method: a referendum on the terms. An article 50 extension is just a necessary step on the way. In itself it is pointless – without a clear purpose we would just use it for more aimless debate about non-existent options. So we should not back calls for an Article 50 extension without a referendum plan.

We should call for Remain, a referendum as the means to provide the choice, and an extension as a necessary technical act to enable that.

Blogs are edited by Nick Hopkinson, London4Europe Vice Chair. Articles on this page reflect the views of the author and not necessarily of London4Europe.