Countdown to Brexit: 8 days – European Council decision will now determine Britain’s Brexit options

An hour into yesterday’s House of Commons ‘emergency’ Brexit debate – MPs became aware of an updated briefing issued by the President of the European Council, Donald Tusk.

We publish it in full, below.  It reflects the mood of exasperation with Britain across the remaining 27 EU remaining nations.  However unpalatable, the Heads of State know that they have a fine balance of judgement ahead of them today in Brussels – as does the European Commission. 

All of them face European Parliament elections in 9 weeks – and need to guard and protect the ideals of the EU whilst not ‘punishing’ the UK for an open and democratic decision made in 2016.

Theresa May has a difficult meeting ahead of her when she meets the assembled Council later today.  This was the same group of Prime Ministers and Presidents with whom she had negotiated for 18 months and agreed, in November 2018, a Treaty on the Withdrawal of the United Kingdom from the EU.

She now has to face them and admit that she has failed to secure approval for the ‘deal’ – running into 585 pages of text – that set terms for a ‘transition period’ running until 31 December 2020; together with a ‘Political Declaration’ that set the terms of negotiations for the future relationship between the UK and EU that would come into effect on 1 January 2021.

The UK will leave the European Union at 23:00 GMT on Friday next week, 29 March 2019, unless an extension is agreed and enacted by multiple UK and EU bodies – or - the UK ‘revokes’ Brexit - the only option open to the UK and which it can make unilaterally.

Theresa May’s broadcast to the Nation, last night, has gone down badly with Parliament – and contrary to some of the ‘statesmanlike’ and conciliatory statements made in the emergency debate given the clock ticking down to a no-deal Brexit.

It will also do little to change the minds of any European Council members – who must accept and approve an application for an extension to Article 50 unanimously – who were inclined to vote against or abstain from giving consent to the UK’s appeal.

The broadcast came later in the day that the Prime Minister wrote a formal letter to the European Council members - as she was required to do – setting out the timing and purpose of an extension.  The letter was posted just after 1:00pm – just after the weekly ‘Prime Ministers Questions’ had ended.  The timing may have been deliberate according to speculation by MPs – however, it failed to take account of the time differences of its readers.  Some Heads of State have expressed concern that they had insufficient time to canvas opinion in their domestic legislatures ahead of the Brussel’s meeting today.

If there is no unanimous agreement to an agreement – and the indications are that the request fails both the test of time and of purpose – the choices facing Parliament are now clear and stark:

  • leave in 8 days with no-deal;

  • revoke Article 50 - and remain a member of the EU for the foreseeable future;

  • accept Theresa May’s deal and leave in 8 days;

  • come back to the European Council by mid-next week with a firm proposal and request an extension in order to implement that proposal.

Letter from President of European Council, Donald Tusk dated 20 March 2019 to Council members:

“Today, I received a letter from Prime Minister May, in which she addresses the European Council with two requests: to approve the so-called Strasbourg agreement between the UK and the European Commission, and to extend the Article 50 period until the 30th of June 2019.

In the light of the consultations that I have been conducting over the past days, I believe that we could consider a short extension conditional on a positive vote on the Withdrawal Agreement in the House of Commons.  The question remains open as to the duration of such an extension.  Prime Minister May's proposal, of the 30th of June, which has its merits, creates a series of questions of a legal and political nature.  We will discuss it in detail tomorrow.  When it comes to the approval of the Strasbourg agreement, I believe that this is possible, and in my view it does not create risks. Especially if it were to help the ratification process in the UK.”

Tusk’s has not explicitly ruled out a ‘long’ article 50 extension - but Theresa May’s comments earlier in the day effectively rule this out as long as she remains Prime Minister.

It also appears to preclude Parliament getting the necessary time to use ‘indicative votes’ to come up with any alternative Brexit solution.  So it’s Theresa May’s ‘deal’; no-deal; or revocation.

Meanwhile the Press Association reports that France, Spain and Belgium are all ready to veto a Brexit extension.  Member states must decide if there is any point to an extension - after 1,000 days of negotiation – whether Mrs May can gain acceptance of her deal at the third attempt.

Speaking to the National Assembly, French Foreign Minister, Jean-Yves Le Drian, added a third criteria that the UK meet for an extension to be granted – participation in the European Parliamentary elections on 23 May.

Europe’s chief Brexit negotiator, Michel Barnier, released a statement yesterday.  The headline is that: “everyone should now finalise all preparations for a ‘no-deal’ scenario”.

Background

European Commission

Europe’s chief Brexit negotiator, Michel Barnier, also released a statement yesterday.  The headline is that: “everyone should now finalise all preparations for a ‘no-deal’ scenario”.

He set the context: “Last week, the House of Commons voted against the Withdrawal Agreement and against a no-deal scenario.  But voting against no-deal does not prevent it from happening.

“On the EU side, we are prepared.  The European Parliament and the Council have now approved nearly all the foreseen contingency measures - and are working on the two few measures that still need to be adopted, namely on short-term visas and the EU budget for 2019.”

Looking ahead to the European Council he noted that “the House of Commons also voted in favour of an extension of the Article 50 period.  If Prime Minister May requests such an extension before the European Council on Thursday, it will be for the 27 Leaders to assess the reason and the usefulness for an extension.

EU Leaders will need a ‘concrete plan’ from the UK in order to be able to make an informed decision.”

He set out his view of the key questions for the 27 EU Heads of State:

  • Does an extension increase the chances for the ratification of the Withdrawal Agreement?

  • Will the UK request an extension because it wants a bit more time to rework the Political Declaration?

The statement refers to the Political Declaration: “which sets out the framework for our future relation” stating that it could be made more ambitious in the coming days “if a majority in the House of Commons so wishes”.

If this is not the case, Barnier questions the purpose and the outcome of any extension - and how parties ensure that at the end of a possible extension, they are not “back in the same situation as today”.

He is absolutely steadfast that the European Council must act “in the best interest of the EU”.

Extending the uncertainty without a clear plan will add to the economic cost for businesses – and will also incur a political cost for the EU. 

He concludes that: “it is for the British Government and Parliament to decide very quickly what the UK wants to do next”.

It is clear that the European Commission opposes Theresa May’s plan to delay Brexit until 30 June as it is presented in her letter.  In internal EU diplomatic briefing note: “Any extension offered to the United Kingdom should either last until 23 May 2019 - or should be significantly longer and require European elections,” the leaked document, obtained by the Reuters news agency, said.

“This is the only way of protecting the functioning of the EU institutions and their ability to take decisions.”

UK Government official position

The Parliamentary Under-Secretary of State for Exiting the European Union, Kwasi Kwarteng, on behalf of the Government, responded to an urgent Parliamentary question from former cabinet minister, Justine Greening MP.  She had asked the Government to make a statement on the procedure for extending the Article 50 period. the question.

Kwarteng : "As set out in a written ministerial statement, and in accordance with the motion approved by this House on Thursday 14 March, the Government will now seek to agree an extension with the European Union.  The extension process has been set out in a Government paper published last Thursday.  While article 50 does not set out how either party should request an extension, the Government believe it would be appropriate for the Prime Minister to write to the President of the European Council.

It is highly likely and expected that the European Council will require a clear purpose for any extension, not least to determine its length.  The European Council has to approve an extension by unanimity.  With this in mind, we will look to request any extension in advance of the March European Council.  It is the Government’s expectation that the European Council will decide whether to agree any UK request at this meeting.

As soon as possible following agreement at the EU level, we will bring forward the necessary domestic legislation to amend the definition of exit day.  That legislation will take the form of a statutory instrument.  If agreement is reached at the European Council, the statutory instrument will be laid before Parliament next week.  The draft will be subject to the affirmative procedure, and will need to be approved by each House.  I hope this reassures Hon. and Right Hon. Members about the procedure that will be followed this week and next."

On Wednesday afternoon Theresa May wrote a letter to European Council president Donald Tusk formally requesting an extension past 29 March, the date Britain is currently set to leave the EU. She said she was ”not prepared to delay Brexit any further than the 30 June”.

The decision of whether to extend and by how long is not up to Brussels – but the 27 other EU member states, who must unanimously approve any delay. Though there are differing views in EU capitals about a delay, throughout Brexit talks member states have however so far stuck close to the European Commission’s line.

European Parliament

EU member states are due to have extra MEPs in the coming European Parliament elections as the UK's present allocation of seats are divided between the other countries.  The EU would need to know by late April - so that seats could be allocated properly ahead of the elections.

The diplomatic note also says that any long extension should see Britain, "in a spirit of loyal cooperation", commit to "constructive abstention" on key issues, such as the budget and selection of Commissioners.

Theresa May’s Letter:  dated 20 March 2019 to Donald Tusk on behalf of the European Council

“Dear Donald,

The UK Government’s policy remains to leave the European Union in an orderly manner on the basis of the Withdrawal Agreement and Political Declaration agreed in November, complemented by the Joint Instrument and supplement to the Political Declaration President Juncker and I agreed on 11 March.

You will be aware that before the House of Commons rejected the deal for a second time on 12 March, I warned in a speech in Grimsby that the consequences of failing to endorse the deal were unpredictable and potentially deeply unpalatable. The House of Commons did not vote in favour of the deal. The following day it voted against leaving the EU without a negotiated deal. The day after that it supported a Government motion that proposed a short extension to the Article 50 period if the House supported a meaningful vote before this week’s European Council. The motion also made clear that if this had not happened, a longer extension would oblige the UK to call elections to the European Parliament. I do not believe that it would be in either of our interests for the UK to hold European Parliament elections.

I had intended to bring the vote back to the House of Commons this week. The Speaker of the House of Commons said on Monday that in order for a further meaningful vote to be brought back to the House of Commons, the agreement would have to be “fundamentally different—not different in terms of wording, but different in terms of substance”. Some Members of Parliament have interpreted that this means a further change to the deal. This position has made it impossible in practice to call a further vote in advance of the European Council. However, it remains my intention to bring the deal back to the House.

In advance of that vote, I would be grateful if the European Council could therefore approve the supplementary documents that President Juncker and I agreed in Strasbourg, putting the Government in a position to bring these agreements to the House and confirming the changes to the Government’s proposition to Parliament. I also intend to bring forward further domestic proposals that confirm my previous commitments to protect our internal market,

 given the concerns expressed about the backstop. On this basis, and in the light of the outcome of the European Council, I intend to put forward a motion as soon as possible under section 13 of the Withdrawal Act 2018 and make the argument for the orderly withdrawal and strong future partnership the UK economy, its citizens’ security and the continent’s future, demands.

If the motion is passed, I am confident that Parliament will proceed to ratify the deal constructively. But this will clearly not be completed before 29 March 2019. In our legal system, the Government will need to take a Bill through both Houses of Parliament to enact our commitments under the Withdrawal Agreement into domestic law. While we will consult with the Opposition in the usual way to plan the passage of the Bill as quickly and smoothly as possible, the timetable for this is inevitably uncertain at this stage. I am therefore writing to inform the European Council that the UK is seeking an extension to the Article 50 period under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, until 30 June 2019.

I would be grateful for the opportunity to set out this position to our colleagues on Thursday.

Yours ever,

Theresa May”

Constitutional end-note on an extension to Article 50

If the UK government and the EU agree an extension, the UK will continue to be an EU member under international law—and international law is superior to domestic law.

A Department for Exiting the European Union briefing note for ministers points out that the Vienna Convention declares:

”’A party may not invoke the provision of its internal law as justification for its failure to perform a treaty.”

As a matter of EU law, it follows that in these circumstances the UK would remain a member state after 29 March - and the EU law consequences of that would continue to flow in the UK.’

In layman’s terms: even if Parliament was ‘prorogued’, or the statutory instrument trying to change the date was somehow defeated in Parliament, the UK would still be regarded as an EU member under both EU and international law.

 

 

John ShuttleworthComment