Brexit scenarios: What could happen after the European Council meeting?

Stefano Fella

The European Council will meet later this week (17-18 October). This meeting is particularly significant as it’s the last scheduled EU leaders’ meeting before the scheduled Brexit date of 31 October.

The European Union (Withdrawal) (No. 2) Act 2019. – also known as the ‘Benn Act’ – passed by Parliament in September, places several requirements on the Government which also make this European Council meeting significant. This Insight sets out the different Brexit scenarios that could unfold following the meeting.

What does the ‘Benn Act’ do?

The ‘Benn Act’ requires that the Government requests an Article 50 extension and seeks to defer the Brexit date until 31 January 2020 if:

a withdrawal agreement has not been approved by the House of Commons by 19 October; and
if the Commons has not approved a motion to leave the EU without a deal by this date.

The flowchart below maps out the different scenarios, depending on whether a deal has been agreed and approved by the House of Commons by 19 October (scenario 1) or no agreement has been reached by that point (scenario 2).

A flowchart showing two possible scenarios following the European Council meeting on 17-18 October. — View larger version.

Scenario 1: A deal is reached with the EU by 19 October

The Government set out proposals to revise the Withdrawal Agreement (previously agreed by the UK and EU in November 2018) on 2 October. These proposals relate specifically to the protocol on Ireland/Northern Ireland. The EU said there were major problems with these proposals. But the UK and the EU then agreed to intensify discussions about a possible compromise solution.

The European Council meeting will be the last opportunity for EU leaders to agree on any revisions to the Withdrawal Agreement. If agreement has been reached, the House of Commons could then be required to sit on Saturday 19 October to vote on a motion to approve it. If MPs reject the agreement, they could then vote on a motion to leave the EU without a deal (see scenario 2).

Even if a revised Withdrawal Agreement is agreed with the EU and has been approved by the House of Commons on/before the 19 October, there will still be obstacles to leaving the EU with an agreement by 31 October.

What are the obstacles to leaving with a deal on 31 October?

Timing

The timescale would be tight. There would only be eight scheduled sitting days, and 11 days in total, for Parliament to pass a Withdrawal Agreement Bill to implement the Agreement by 31 October. In the past, the number of days required for Parliament to pass legislation to implement major EU Treaty changes has been as high as 41 (the Maastricht Treaty). The less controversial Nice Treaty took 11 days.

Consent from the European Parliament

Consent would also be required from the European Parliament (EP). The EP will be sitting in plenary from 21-24 October so could hold a vote of consent in this session. The EP’s Constitutional Affairs Committee would need to meet and adopt a report and consent motion on the agreement first. The EP has already said that the proposed revisions tabled by the Government are not something that it could agree on but it may be happy with any compromise that emerges.

A technical extension

If a withdrawal agreement has been approved in the Commons by 19 October, the provisions of the ‘Benn Act’ will no longer apply. However, a further ‘technical extension’ might be required in order to provide time for a Bill to be passed in the UK Parliament, and for European Parliament consent to be secured. Failure to pass the necessary legislation in the UK or to secure the consent of the European Parliament should a technical extension be agreed could still result in the UK leaving the EU without a deal at a later date.

Scenario 2: No deal has been reached with the EU by 19 October

If a deal has not been reached, then there could be a Commons vote on 19 October on a motion to leave the EU with no deal on 31 October. If the Commons rejects this option, then the ‘Benn Act’ requires that the Prime Minister write to the President of the European Council requesting an Article 50 extension until 31 January 2020. If the European Council agrees to this extension the Prime Minister is then required to inform the European Council that the UK also agrees to it.

However, if the European Council agrees to an extension, but to a date other than 31 January, the ‘Benn Act’ provides that the Prime Minister can either agree to that extension or ask the House of Commons (within two calendar days) whether it wishes to approve that extension.

If the House of Commons “decides not to pass” a motion approving the extension, the Prime Minister can choose whether or not to agree to the extension. At this point the Government could then agree this date, seek to agree another date, or the UK could leave the EU without a deal.

No-deal remains the default

If an extension to Article 50 is agreed – either to 31 January or another date – the default position will be that the UK leaves the EU without a deal. Unless Article 50 is revoked, the only way a no-deal Brexit can be prevented is if MPs approve a withdrawal agreement, the legislation needed to implement the agreement passes through the Commons and the Lords, and the European Parliament consents to the agreement.

The different routes to leaving with or without a deal are mapped out in the flowchart above. These are based on the presumption that the UK will not revoke the Article 50 notice and that the EU will not wish to extend the Article 50 period indefinitely.