Despite last-minute additions, Theresa May’s Brexit deal has again been heavily defeated in the Commons. Hence, MPs will need to consider an extension of Article 50. Meg Russell and Alan Renwick argue that for any practical purposes – including renegotiating a deal, or holding a referendum or citizens’ assembly to break the Brexit impasse – the extension previously proposed by the Prime Minister is too short. MPs may now want to press a longer extension on the government.

This week is crunch Brexit decision time for parliament. With the official exit day of 29 March just over a fortnight away, the Prime Minister has been defeated for the second time on her deal, despite some last-minute concessions. She has previously promised MPs further votes on two things: the immediate prospect of a ‘no deal’ exit, or requesting an extension to the Article 50 period. Following tonight’s defeat, MPs will be asked tomorrow whether they wish to exit without a deal on 29 March. If that is defeated, as looks very likely, they will be asked on Thursday whether the Prime Minister should return to Brussels requesting a delay to exit day. Such a decision is at the discretion of the EU27, who must unanimously agree.

The Prime Minister originally proposed that if the Commons supported extending Article 50 she would ask for a ‘short, limited extension’, which should go ‘not beyond the end of June’. But while this might buy the UK time, and avoid the immediate risk of a ‘no deal’ exit, would it really be adequate to resolve the situation? When MPs face this question, there are many reasons to believe that they should demand a longer extension, given how little could be achieved within three months.

Reopening negotiations

To date the Prime Minister’s intention seems to have been that, faced with an extension, she will continue acting as she has for months, using the extra time to grind out further concessions from the EU and/or grind down her parliamentary opponents. Yet this strategy has achieved little so far. Following the last-minute talks on Monday, European Commission President Jean-Claude Junker commented that there would be ‘no third chance’. So the EU27 could well reject an extension if this were the plan. It hence seems almost certain that a more fundamental change in direction will be needed.

The additions to the Withdrawal Agreement have failed to sway sufficient Conservative MPs, or the DUP, to support the deal. Looking ahead, an obvious alternative is for the government, rather than seeking to bring hardline Conservative Brexiteers on board, to build bridges with the Labour Party (or at least some Labour MPs) to agree a ‘softer’ Brexit.

This would probably be achieved through changes to the ‘political declaration’ rather than the Withdrawal Agreement itself. For example, if the Commons found a majority for a permanent customs union and/or ongoing membership of the Single Market (perhaps having held ‘indicative votes’), the EU27 might be willing to amend the political declaration to provide this. EU expert Charles Grant suggested something similar on Monday, commenting that ‘An extension of 3 months gives MPs time to work out what they want through a series of indicative votes’. But indicative votes might well not reveal clear majority preferences immediately. Plus, managing the negotiations up to and after such votes at Westminster, followed by the essential negotiations in Brussels to achieve a new deal, would clearly take time.

Crucially, even after in-principle agreement of any new deal by the House of Commons, legislation must follow, which needs to pass through both chambers of parliament. This means in-principle agreement would have to be reached in a very few weeks, otherwise a further extension beyond three months would soon be needed. If MPs want a real opportunity to agree an alternative Brexit deal, pressing for a longer extension than that so far proposed by the Prime Minister would seem sensible.

A further referendum

Many MPs believe that the Brexit deadlock will not be resolved without a further referendum (the so-called ‘people’s vote’), and pursuing such a vote is now official Labour Party policy. One proposal, from MPs Peter Kyle and Phil Wilson, has been that the Commons should pass the Prime Minister’s deal on condition that it be approved in a referendum before being given legal effect. Potentially that could still happen. Alternatively, if a different deal is negotiated (as above), gaining parliamentary agreement for that might likewise require commitment to a public vote. In either of these cases, a referendum would take time. Like the Withdrawal Agreement itself, it cannot simply be agreed in principle but must be implemented through legislation. As set out in a Constitution Unit report in October, and summarised previously on this blog, the various steps to a referendum – from in-principle parliamentary agreement to polling day – would take around 22 weeks (five months). This includes the time for the legislation to clear parliament, for the Electoral Commission to test the referendum question, and for the campaign period itself. Although potentially a little time might be shaved off this timetable, there are limits to what could be achieved without bringing the legitimacy of the referendum into doubt. Subsequent time might also be needed for the results of a referendum to be implemented. So those MPs who favour a further referendum need to realise that it cannot be fitted into a three-month extension period.

A citizens’ assembly on Brexit?

Agreement on a way forward could need broader consultation than is possible within parliament alone. Labour’s Yvette Cooper has suggested involving a cross-party commission, perhaps supplemented by citizens’ assemblies. Proposals for some kind of deliberative citizens’ assembly have also been pursued by MPs such as Stella Creasy and Lisa Nandy and by former Prime Minister Gordon Brown. The Guardian newspaper is actively campaigning for such a consultation, and the possibilities were recently explored on Radio 4’s Analysis. This blog has previously assessed the options.

The benefit of a citizens’ assembly is that it gets away from polarised debate between two sides, and enables members of the public to carefully consider the options and trade-offs. Such exercises have increasingly been used in Ireland ahead of referendums, to good effect. An assembly in the Brexit context would need backing from both Leavers and Remainers – which may be a difficult hurdle to pass. But it could in principle be valuable.

Aside from an exercise held by the Constitution Unit in autumn 2017, members of the public have not been invited to deliberate in depth on what kind of Brexit they want – and how they would deal with trade-offs such as those needed to resolve the Irish border question. But citizens’ assemblies take time. Six months would be needed, to allow for setting up a robust and independent process, recruiting members and letting them deliberate over multiple weekends. And time would be needed afterwards for parliament to consider the assembly’s recommendations.

The constraints at EU level

In thinking through the timetable, it is not just the constraints created by UK processes that need to be taken into account. There are also significant constraints at EU level. The European Parliament must endorse the Withdrawal Agreement before the deal can take legal effect, but is currently awaiting the UK parliament’s approval first. The current European Parliament meets for the last time in April, with a new Parliament not in place until July. This makes negotiation over the April–June period difficult. In addition, a new European Commission President will be elected by the Parliament to take over in the autumn. There are hence good reasons why the EU, as well as the UK, may need breathing space.

A related complication is the fact that the EU27 will hold fresh elections to the European Parliament in late May 2019. The government has been insistent that the UK will not participate in these elections, and they could indeed prove very fractious if held in the context where the UK is set to leave. This is a tricky topic, but lawyers suggest that the UK could ultimately avoid the elections while still in the Article 50 period, provided the EU27 agreed.

So what should MPs do?

In conclusion, an Article 50 extension of three months or less could avoid the immediate crisis of a ‘no deal’ Brexit on 29 March, but would be of limited use in achieving more than that. An attempt to renegotiate the deal could see the UK soon returning to request a further extension in order to allow time to legislate – while reports suggest that a second extension would be strongly resisted by the EU27. It would hence be preferable to seek a longer one-off extension. This does not necessarily mean the 21 months said to be favoured by some among the EU27: a shorter period of 9–12 months might be adequate. Importantly, MPs cannot rely on the EU27 to impose a longer delay; this would be politically difficult if the Prime Minister arrived with a specific parliamentary mandate to negotiate something more time-limited.

The Prime Minister has promised a motion to extend Article 50 for debate on Thursday. If this proposes a specified short period, MPs who want to provide breathing space for a genuine rethink and a constructive solution will want to consider amendments. If the government’s motion contains a deadline, one form of amendment would explicitly replace this with a longer deadline. An even simpler amendment, which might prove less contentious, would just remove the deadline. This would leave maximum flexibility for negotiations between the government and the EU27. In opening such negotiations, both sides will surely listen carefully to the opinions expressed by MPs during Thursday’s debate.

About the authors

Professor Meg Russell is Director of the Constitution Unit.

Dr Alan Renwick is Deputy Director of the Constitution Unit.

They are both joint authors of the Unit reports The Mechanics of a Further Referendum on Brexit and The Report of the Citizens’ Assembly on Brexit.