With a decision by the EU27 Council members on an Article 50 extension expected by the end of play tomorrow, what is likely to happen next?


With the future of the whole UK hanging in the balance and waiting on the leaders of 27 other countries to make a decision, how can anyone look you in the eye and say that the UK is still a sovereign nation?

But some will still try to do so.

Anyway, this will be making some Remainer MPs nervous as, with 7 days to go to Brexit Day, the opportunities to react with a revocation of the Article 50 letter should Brussels end up saying no to an extension, are fast evaporating.

But the indications are that we are going to be offered an extension to the 31st of January 2020.

Or should I say, that due to the Benn Surrender Act we will in effect be ordered to take an extension to the 31st of January 2020. A little more on that later.

So, if tomorrow there is a decision that no extension will be offered, the only routes available are a no deal Brexit, or for Remainer MPs to gang together and get enough support amongst them to force an Act of Parliament through before Thursday next week to revoke the Article 50 letter.

But working on the assumption that Boris does receive an extension offer from the EU Council President Donald Tusk and is forced to accept it either straight away or via the courts on Monday, (Oh yes I reckon it would be that quick), then there are several ways this could go.

But it will depend on how long an extension we are told to have.

A short extension might enable Boris to force through his deal on the assumption that, if MPs try to muck about with it by adding customs unions and referendums etc, it would probably end up forcing a no deal after the new short extension anyway.

If they offer say a year, then you could expect to see Remainer MPs go into bunker mode, avoid a general election and try to force a second EU referendum on us.

But in the more likely event they give us the three month option, then the first decision should be the obvious one – to have a general election.

But reports are suggesting that many MPs on both sides of the House would not go for it – they are using the excuse that either we need to get the deal through or that we need to amend it some more – you know, the usual delaying tactics.

Anyway, the many options are roughly as follows:

A Fixed Term Parliament Act early general election

A one line bill general election.

A vote of no confidence, either opposition or government induced, leading to a new government or a general election

getting the deal as is through the house

getting an amended version of the deal through the house, which then would need to be once again agreed with Brussels

Leave with no deal

or the pro-Remain MPs manage to reverse Brexit altogether.

Headaches all round for politicians.

Now, if and when the Article 50 extension is offered, it will come in the form of an EU Council decision.

Normally those decisions have a preamble that imposes conditions, for example I think it was the last one that basically told the UK that its representatives in the EU, like the Commissioner and MEPs, should not get in the way of Brussels' ambitions and just go along with what the EU wanted to do.

Now, the Benn Surrender Act doesn't as far as I can see, give reference to any of these additions – it only talks specifically about the time frame of any extension on offer.

So, if I were Boris and the decision that came in from the Council had any conditions at all in it, I would be tempted to say that I can only accept the timeframe, not the conditions.

For example, if they offered what's called a 'flextension', one that could end before the 31st of January if a deal was agreed earlier than that date, I would point to the Benn Surrender Act section three, which only says the PM has to accept an extension that ends on the 31st of October, not one that could end earlier.

So the offer would not be in exact accordance with what parliament ordered through a very prescriptive law.

There could be other conditions that take it out of exact compliance with the act, including onerous ones – who knows?

So the PM could say, I'm not accepting it straight away.

That would give the PM the right to delay until Monday and then lay a motion for MPs to vote for it, thus putting the blame firmly on those that do vote for it.

Now, one point everyone should be aware of is the nasty little trap in Section 3(2) of the Benn Surrender Act.

This says that if the EU offers the UK an extension of any length other than to the 31st of January 2020 – either shorter or longer – the UK must accept it unless our MPs in parliament, within just two days, turns that offer down.

And that's two days, not two sitting days, nor does it exclude weekends. So if the EU tomorrow offers us, say a five year extension, technically we could be forced to agree to it, because the House of Commons has not voted to sit either tomorrow, Saturday or Sunday.

And that's why the Benn Act is called the Benn Surrender Act and those that put it in place should be thoroughly ashamed of themselves, but I suspect they will be dancing in the streets!




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