You’re correct on point 2. However, on points 1 and 3, there are several avenues in which more time could be bought. Either by the Government, Parliament, or a collusion of both.
The Government of the day could easily step in and defer/cancel Article 50, and then make changes to the legislation to prevent it coming into practical effect on 29th March.
While some factions like to portray the idea that Brexit is hard coded into law, come what may, this isn’t the case. While it’s true that the mentioned Act has been passed, its legal significance in terms of the UK departing the EU on the 29th is minimal. The purpose of that Act is to make domestic provision for what happens with EU law in the UK after the European Communities Act 1972 is repealed. Section 1 implements this repeal on ‘exit day’.
The essence of the Act is that it ports over pre-existing legislation derived from the ECA 72 into UK law, if and when the ECA 72 is repealed. But it doesn’t really legislate for the actual withdrawal process, or put any obligation on the UK to definitively leave the EU at all. Of course, parliament authorised the UK to leave in a previous Act (European Union (Notification of Withdrawal) Act 2017) - giving the Government permission to invoke Article 50 of the TEU, conferring the power to notify the EU of an intention to leave, but put no obligation that the Government must see the process through.
The only significant intervention the Withdrawal Act makes in respect of the exit process is that it forces the Government to get Parliamentary approval of its deal in order to ratify the deal in any exit treaty (see Section 13). But even if parliament rejects May’s deal, it is not inevitable that we will see a no deal Brexit on the 29th.
Let’s see how ‘exit day’ has been defined in the legislation - it is significant because it is the trigger used as a condition for much of the Act actualising:
Section 20 - Interpretation - European Union (Withdrawal) Act:
s.20 (2):
“In this Act references to before, after or on exit day, or to beginning with exit day, are to be read as references to before, after or at 11.00 p.m. on 29 March 2019 or (as the case may be) to beginning with 11.00 p.m. on that day.”
In other words, the Act has been written to actualise at a time which is coincidental with when the UK departs the EU.
Which seems quite solid. But just two subsections down, notice how easily this definition can be changed by a Minister in Government if the date the EU treaties cease changes.
s.20 (4)
"A Minister of the Crown may by regulations—
(a) amend the definition of “exit day” in subsection (1) to ensure that the day and time specified in the definition are the day and time that the Treaties are to cease to apply to the United Kingdom, and
(b) amend subsection (2) in consequence of any such amendment"
Now, the ‘day and time that the Treaties are to cease to apply to the United Kingdom’ is dictated by Article 50;
“3. 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 referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
The EU have indicated they are happy to extend this period if the UK sought to.
As confirmed by the ECJ, Article 50 is also unilaterally revocable by the departing Member State
If the Government for any reason chooses to cancel or seek to extend Article 50, it can do so without parliamentary authority. Even if MPs have chucked May’s deal out, the Government can still decide to either delay or cancel Article 50. This is because international treaties are the prerogative of Government. The reason it had no prerogative to commence the process was that doing so might impinge on rights implemented by Parliament in the ECA 72. But no rights set by Parliament would be impinged upon by its reversal of the decision. (See R v Miller).
Any Minister can make a Statutory Instrument to change the definition of s.20 (2) which would stop the provisions of the Act being actualised on 29th March at 11pm. Although the provisions of the act are legally ‘in force’ already - they are defined as being contingent as occurring at/on/after '“exit day” and a simple change to the meaning of exit day would stop the post-exit day provisions from actualising.
In light of this - let’s look over your scenarios (and some extra ones) again:
If, before March 29th:
- If MPs do nothing (unlikely):
-
Brexit would be in the hands of the Government. It could choose to opt for no deal, or defer/cancel Article 50 and change the legislation (the statutory order effecting the exit would need to be positively rejected by parliament to stop this - and let’s assume they don’t do that in this scenario. Even if parliament stopped the legislation being changed, it would not directly effect whether we stayed in or left the EU on that date, although it would create a messy situation for the courts to clear up)
-
So even though the Government insists it’s going to plough ahead, if it looked like the UK were really on course for no deal, I think there’s a high likelihood it would at least defer Article 50 with its prerogative, because, in honesty it does not seem prepared for no deal. (Ordering a ferry company that has never operated before and owns no ships…). And I think there would be too much pressure from the electorate/business/parliament to avoid a No Deal scenario, even if an alternative is yet to be worked out.
- If MPs vote for May’s deal (unlikely).
- Brexit would again be in the hands of the Government. It would be permitted to ratify the exit deal, at its discreiton and leave on the terms May’s deal. Or, May herself could in a shock turn of events disown her own deal and still decide to leave on no deal, or delay/cancel Article 50. MPs could ‘dummy’ the May administration before plotting a political coup, toppling May. The incoming Gov’t would then likely delay Article 50 until a leadership election/general election took place.
- MPs try to to formulate, debate, and agree another course of action (likely).
- If May’s own party were among those planning for a different Brexit scenario, she would likely acquiesce to try save her own career and remaining reputation, and delay Article 50 through the the mechanism described in this post. She could cling on long enough to get some form of second Brexit deal agreed with Parliament and the EU, before certainly leaving office immediately afterwards. Or, she or her Government might resign and a new leadership election and possibly general election be set in motion, with Article 50 delayed until the new Government is in place. This would buy MPs time to reevaluate their approach. If the EU refuse to extend Article 50 for some reason, her options would be no deal, or to unilaterally cancel Brexit with intention of reinvocation after MPs decide their approach. In this scenario we can assume there is no poltical mandate for no deal, and May would kill off the Conservative party if she still opted for it, meaning she certainly wouldn’t.
- MPs reject May’s deal but there is a clear mandate for an alternative approach when MPs are given the chance to vote on alternative options (unlikely).
- There is a lot of talk in the media about MPs being given a selection box of options to vote on by the Government if May’s deal is rejected. These would vary from Norway-style EEA membership, Canada+ Free trade, remaining in the Customs Union/Single Market , leaving with no deal, leaving with a deal that agrees a ‘clean break’ etc. If somehow MPs got behind one of these options, unless they chose a clean break/no deal, there is no chance of this new plan being agreed by the EU before March 29th, thereby prompting a delay to Article 50 to allow for this to be attempted to be negotiated with the EU. Again, if the EU refused to extend, the only alternative would be a revocation with intention to reinvoke.
- MPs reject May’s deal, and none of the selection box options receive a clear mandate in parliament (likely).
- But, as we know - there is no consensus in Parliament as to what form of Breixt is preferable. I am sure the Government is aware that none of its alternatives will receive backing, and it shall use this as an excuse to delay Brexit and kick the can down the road. Again this will probably lead to a change of leadership, and then who knows what will happen eventually.
- May falls before the 29th (possible).
- If either her party or a majority in parliament manage to force May out, this is again certain to lead to a delay. It’s most likely that she would gracefully leave and delay the process until a new Government is in place. In the unlikely event that she loses support but tries to carry on without the command of Parliament, her Government would probably face a Motion of No Confidence and the Queen would likely appoint Jeremy Corbyn as Prime Minister, but under the Fixed-Term Parliaments Act he’d have to get a Motion of Confidence passed by the Commons within 14 days of the May Administration’s Motion of No Confidence - which he not would get, tying his hands and leading to an automatic General Election. Again, meaning a delay to Brexit. In extraordinary circumstances, where May neither had any support, but also enough MPs supported her in the No Confidence vote, the Queen might have to make an extremely rare intervention and dismiss her Government, appointing someone else, likely Corbyn, on the condition he/she immediately calls an election.
