Richard North, 22/10/2019  
 


Yesterday was one of those days when the legacy media and politicians – from Downing Street to Westminster - excelled themselves in demonstrating their profound ignorance of the EU and its procedures.

Taking a couple of snapshots, we have Downing Street reported as saying that it still hopes to meet the 31 October deadline for leaving the EU - even though it can't with a deal – and then we have Katya Adler, the BBC's lead Brussels correspondent, who also believes that an exit "may get done" by the 31st, with the Withdrawal Agreement in place.

What did for the ambitions of the politicians and the (diminishing) reputations of the hacks were two events, cemented in by a third.

The first, in chronological order, was not the Speaker's intervention, but the confirmation by the Brexit Steering Group that the European parliament would not vote on the withdrawal agreement until the UK parliament had backed (i.e., approved) the deal.

This came at 3.20pm and, at that point, the second event was almost due. This was the Speaker's statement on whether to allow a "meaningful vote" to approve Johnson's deal. It came just after 3.30pm, when the Speaker ruled that the government's motion was "in substance" the same as Saturday's motion. Therefore, it could not be debated, "as it would be repetitive and disorderly to do so".

Bearing in mind that the Letwin amendment had the House of Commons withholding approval "unless and until implementing legislation is passed", this meant that the necessary condition for the European Parliament to give its content was the passage of the European Union (Withdrawal Agreement) Bill (WAB) to Royal Assent.

No date was given for this. Although the assumption was that it would not happen this week, it took for the Leader of the House to advise MPs that the Bill would conclude on the Thursday, but with absolutely no guarantees. Labour is planning multiple amendments, which could slow down proceedings, and if any succeed, the government could abandon its own legislation.

Even had the Speaker not ruled against the new motion, though, there was a distinct possibility that there could have been a "Letwin 2" amendment, again withholding approval.

This had the Guardian's deputy political editor, Rowena Mason, asking why the government was so keen on a meaningful vote when it also needed to pass the WAB.

The theory was, she ventured, that if it passed, Johnson would try to rescind his request to the EU for the Art 50 extension, arguing MPs have given their consent for a deal. However, reference the European Union (Withdrawal) Act (Section 13) shows that the Agreement can only be ratified if parliament has approved it and passed an implementing Act. Both conditions must be satisfied.

Crucially, if the European Parliament was to give its consent this week, the government needed approval of the deal in the bag yesterday.

Discarding the Guardian's conspiracy theory, if we put the three relevant elements together, this means that the European Parliament cannot vote for the deal this week during the plenary session at Strasbourg. Next week, there is no parliamentary business scheduled and, in the extremely unlikely event that 751 MEPs and their staff could be recalled to Brussels, this would have to be against a firm timetable in the UK parliament – which, of course, is not available.

In fact, trying to get all the MEPs back to Brussels in time for an unscheduled session, together with their staff – making about 2,000 people in all – is near impossible. But, with no guarantee that the UK will even have ratified the agreement by next week, there will be no attempt made to call them back.

On this basis, it is now not possible for the European Parliament to give its consent to the deal before 31 October, and without that consent – even if the WAB is given Royal Assent next week - the General Affairs Council (GAC) of the Council of the European Union cannot conclude the Withdrawal Agreement and it cannot enter into force by the end of the month.

In short, therefore, there is no possibility of the UK leaving the EU with a deal by 31 October. On the face of it, the only way we can leave by that date is without a deal. And, of course, if the UK parliament doesn't approve the deal, the European Parliament can't act anyway. This is a long-standing stance which has been approved by the European Parliament as a whole.

However, there is then the issue of the Art 50 extension. If, as expected, the UK government is offered one – and accepts it – which runs to the end of January 2020, even if it has a break clause the UK will not be able to leave on 31 October. It will have to wait until the UK parliament has ratified, the European Parliament has consented and the GAC has concluded the Agreement – if, indeed, that can happen.

As it stands, the most likely spot for the European Parliament to vote for the deal is during the plenary in Brussels scheduled for 13/14 November. Even if that takes place, it may take a little time then to get all the ducks in a row, and warn all the relevant people of a new Brexit date, so it has been suggested that the new Brexit date might be 30 November.

At least one cabinet minister, though, Michael Gove, seems aware of the risk of a no-deal exit. Yesterday, he told MPs that, with no clear agreement yet in the Commons to ratify the Withdrawal Agreement and no certainty that an extension will be granted by 31 October, he had decided "to prepare for the increased possibility that the legal default position will follow and that we will leave on 31 October without a deal".

Yet, even Gove does not seem to be aware that, even if the UK parliament does ratify the deal before 31 October, it still can't be concluded in accordance with EU law and still can't enter into force. This must wait for the European Parliament to do its stuff.

The whole situation then gets vastly more complicated if any of the Labour amendments do succeed and the government carries out its threat to withdraw the legislation. That will leave the European Council with a difficult situation. Most likely, it will resolve it by holding off making a decision on an extension until the last possible minute and then making an extension offer conditional on either there being a referendum or a general election.

Time then gets perilously short. Westminster's response would have to be conveyed to Brussels, the terms of any extension would have to be formalised and then the UK parliament would have to amend the Withdrawal Act to take account of the new leaving date(s). And, with that many moving parts, it is very easy for something to go wrong.

For the moment, though, the media and – it seems – the government is still labouring under the belief that Johnson can honour his "do or die" commitment to leaving on 31 October. For instance, the egregious Rowena Mason (together with Heather Stewart) now tells us that, "if the government can force its Brexit bill [WAB] through parliament in time, the UK could in theory still leave the EU by next Thursday's deadline".

Christopher Hope of the Telegraph, on the other hand, has Royal Assent for the WAB on 30 October, which apparently allows the UK to leave the EU at 11pm on 31 October, "bringing down the curtain on 46 years of Britain's membership of the trading bloc".

And even The Times gets it wrong, reporting that "Johnson faces a crucial vote on his Brexit deal today as MPs decide whether to fast-track it through the Commons in time to leave the European Union on October 31". The BBC's all-knowing Laura Kuenssberg, on the other hand, merely thinks that chances of meeting 31 October "look slim indeed" – and then only if the government loses the timetable vote.

I suppose we can't expect the media to know how the EU system works. After all, we've only been in it for just over 45 years. But, one thing is for sure. We can't leave with a deal on 31 October.

***

Pete will be giving a talk at Kings College in London this Wednesday on a loose theme of Efta and missed opportunities. There will be a Q&A session and he will hopefully make it to a pub afterwards. He hopes to see some of you there.






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