After the EU extends the UK’s exit date, Johnson loses, then wins, vote for a new election

With time running out in the extension to Oct. 31 of the UK’s exit date the EU granted last April, yet another chapter was opened this week in the long-running Brexit saga. On Monday, after several days of consultations among the heads of state or government of the other 27 member states, European Council President Donald Tusk announced the EU27 had agreed to accept the UK’s Oct. 19 request for another extension to Jan. 31, 2020. And yesterday, after having failed for the third time to win a two-thirds majority on a motion calling for an early election, Prime Minister Boris Johnson won a lop-sided majority in support of a bill calling for a new election on Dec. 12. If the results of that election correspond to the latest polls, the Conservatives will win a substantial majority in the House of Commons and, with that majority, Johnson will obtain the approval of the withdrawal agreement negotiated with the EU that eluded former Prime Minister Theresa May on three occasions last spring and thus far has eluded him as well.

On Oct. 17, after a week-long negotiating marathon regarding Johnson’s proposed changes in the Protocol on Ireland/Northern Ireland in the EU-UK withdrawal agreement, the EU and UK agreed on a modified Protocol and the European Council approved the agreement. Two days later, the House of Commons, meeting in a rare Saturday sitting, considered the government’s motion to approve the agreement. If approved, the government would not have to request the extension of the UK’s exit date mandated by the European Union (Withdrawal) (No.2) Act 2019. That Act, passed in early September, stipulated that if the House had not approved either a withdrawal agreement or the UK’s withdrawal without an agreement by midnight on Oct. 19, Johnson would have to send a letter to Tusk requesting an extension to Jan. 31, 2020.

But there were fears among many in the House — even among some who supported the agreement — that, even if the agreement were approved, as a result of which Johnson would not have to request an extension, it was possible the UK might leave the EU on Oct. 31 without an agreement, either because of procedural delays in enacting the legislation necessary to implement the agreement or because some hardline Brexiters, disenchanted with the agreement, might block passage of that legislation. Motivated by that concern, a cross-party group of MPs led by Sir Oliver Letwin, one of the 21 Conservative MPs thrown out of the party by Johnson after voting for the bill that became the European Union (Withdrawal) (No. 2) Act 2019, along with Hilary Benn, a Labour MP who had led the cross-party group of MPs that produced that bill, and others put forward an amendment to the government’s motion: “That, in light of the new deal agreed with the European Union,…this House has considered the matter but withholds approval unless and until implementing legislation is passed.”

The Letwin amendment was approved by a vote of 322 in favor and 306 opposed. Those voting for it included 231 of the 237 Labour MPs who voted, all 35 SNP MPs, all 19 Liberal Democrat MPs, 17 of the 34 Independent MPs who voted, all ten DUP MPs, all five Independent Group for Change MPs, all four Plaid Cymru MPs and the Green MP. Voting against it were all 283 Conservative MPs who voted, 17 Independent MPs and six Labour MPs. Among the 17 Independents voting for it were nine of the 21 former Conservative MPs Johnson had thrown out of the party after they had voted for the bill that became the European Union (Withdrawal) (No. 2) Act 2019. In light of the amendment, the government didn’t proceed to a vote on the motion.

That evening Johnson sent Tusk a copy of a two-paragraph letter, included as a Schedule in the European Union (Withdrawal) (No. 2) Act 2019, that requested the three-month extension of the exit date he was required to request if the House had not approved either a withdrawal agreement or withdrawal without an agreement by midnight on Oct. 19. As the Saturday sitting of the House concluded, Jacob Rees-Mogg, the Leader of the House, announced the government would bring forward another motion to approve the withdrawal agreement last Monday and it did so. But Speaker John Bercow ruled the motion violated the long-standing parliamentary convention that the same question can’t be brought forward for a vote a second time in the same parliamentary session and, therefore, it would not be debated.

Following the Speaker’s decision, the government published the European Union (Withdrawal Agreement) Bill and the House gave it a first reading. The WAB, as the bill is frequently abbreviated, is a 110-page document that, if approved, would give legal effect to all of the provisions in the nearly 600-page withdrawal agreement negotiated by the UK and EU, including the 63-page modified Protocol on Ireland/Northern Ireland, related to the UK’s departure from the EU. The government, desperate to leave the EU on Oct. 31 notwithstanding its request for a three-month extension of the exit date, announced an exceptionally compressed three-day schedule for consideration of the WAB – one to which many MPs, including some who supported the WAB, strenuously objected.

Nevertheless, last Tuesday the House voted to give the WAB a second reading. It was an important vote because, had the House rejected the bill on second reading, the legislative process by which it would become law would have been brought to an abrupt halt. 329 MPs voted in favor of the WAB on second reading while 299 voted against. Voting in favor were all 285 Conservative MPs who voted, 19 Labour MPs, and 25 of the 33 Independent MPs. Among the 25 were 16 of the 21 former Conservative MPs who had been thrown out of the party in early September after voting for the bill that became the European Union (Withdrawal) (No. 2) Act 2019. Voting against were 217 Labour MPs, eight Independent MPs, and all 35 SNP MPs, 19 Liberal Democrat MPs, 10 DUP MPs, five Independent Group of Change MPs, four Plaid Cymru MPs and the lone Green MP. The 329 to 299 vote in favor – and, in particular, the fact that 19 Labour MPs voted in favor – suggested for the first time that, if and when the WAB got to the decisive third reading, the House might approve it and the UK might be able to leave the EU with an approved withdrawal agreement rather than without one.

But the WAB didn’t get to a third reading. Indeed, it didn’t get past the next stage in the legislative process, the programme motion, which set out the government’s highly-compressed three-day timetable for consideration of the substantive provisions of the WAB and precedes the committee stage, in which the bill can be amended, the report stage, and then the decisive third reading. Immediately after the second reading, the House, not surprisingly given the extensive opposition to the compressed timetable, rejected the programme motion. 308 MPs voted in favor and 322 voted against. The vast majority of MPs – indeed all of the Conservative, SNP, Liberal Democratic, Independent Group for Change, Plaid Cymru and Green MPs – voted as they had in regard to the second reading. But 14 of the 19 Labour MPs who voted in favor of a second reading voted against the programme motion as did seven of the 25 Independent MPs who had voted in favor of the second reading, six of whom were among the 21 Conservatives thrown out of the party in September. After the House rejected the programme motion, Johnson announced a “pause” in the legislative process and floated for the first time the idea of an election on Dec. 12.

Following the “pause,” Tusk announced he would recommend that the EU27 leaders accept the UK’s request for an extension and would propose that they do so via a written procedure rather than convening again as the European Council. It soon became apparent that some of the leaders – most notably, President Emmanuel Macron of France, who had strenuously resisted the long second extension granted in April and wanted, at most, a short “technical extension” accompanied by conditions, including that there would be no more extensions — were opposed to a three-month extension. Hoping to reach a decision last Friday, the discussions continued through the weekend along with the preparation of a draft Decision and Declaration.

On Monday, after a short meeting of the EU27 ambassadors, Tusk announced the EU27 leaders had agreed to accept the UK’s request for a new extension and, after receiving Johnson’s written confirmation of the UK’s formal agreement to the extension as described in the draft Decision, the European Council issued the Decision, taken, it noted, in agreement with the UK. In it, the European Council agreed to grant the UK a further extension to Jan. 31, 2020. But recalling the fact that, under Article 50(3) of the Treaty on European Union, the withdrawal agreement may enter into force on an earlier date should the parties complete their ratification procedures before the agreed-upon date, the Decision stated the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on Feb. 1, 2020, whichever is the earliest. It also stated the extension can’t be allowed to undermine the regular functioning of the EU and its institutions and that the UK would remain a member state with full rights and obligations until the new withdrawal date, including the obligation to suggest a candidate for appointment as a member of the Commission. Importantly, it also stated that the extension excludes any re-opening of the withdrawal agreement. These commitments and conditions were reiterated in a separate Declaration the European Council issued yesterday.

Also on Monday, Johnson issued a written statement to the House that the government had tabled a motion proposing, in accord with section 2(2) of the Fixed-term Parliaments Act 2011, an early general election. In the statement, Johnson said that if the House approved the motion, he would recommend that the Queen appoint Dec. 12 as the date of the election. Since the Act, as amended in 2015, requires that Parliament be dissolved at the beginning of the 25^th working day before the polling day, a Dec. 12 polling day would mean the Parliament would be dissolved just after midnight on Nov. 6. He also said he would recommend that the first meeting of the new Parliament take place before Dec. 23. The Act stipulates that passage of such a motion requires a vote in favor equal to or greater than two-thirds (434) of the total number of seats (650) in the House. On Monday afternoon, while more MPs voted in favor (299) than against (70), the motion failed because the vote, like those on similar motions in early September (298 to 56 on Sept. 4 and 293 to 46 on Sept. 9), fell well short of the 434 required for a two-thirds majority. Voting in favor on Monday were 280 Conservatives, 18 Independents, and one Labour MP. All the other MPs either voted against or abstained.

But undaunted by his third failure to obtain the two-thirds majority in favor of an early election required by the Fixed-term Parliaments Act 2011, after the vote Johnson put forward a one-line bill for consideration yesterday that, if approved by a simple majority, would provide for an election on Dec. 12. The provisions accompanying the motion set out a timetable that made last week’s compressed timetable for the WAB seem positively leisurely; the provisions required, for example, that the second reading be brought to a conclusion four hours after the proceedings on the motion began and that the later stages, including the third reading, be brought to a conclusion six hours after the proceedings on the motion began. Ironically, given that the government resorted to calling the election via a new bill, which required only a majority for passage, rather than via the Fixed-term Parliaments Act 2011, which required a two-thirds majority, because a substantial number of Labour MPs supported the motion after Jeremy Corbyn concluded the EU extension had taken the threat of a no-deal exit off the table (at least until Jan. 31, 2020), the bill was approved by more than two-thirds of the MPs; 438 voted in favor, 20 voted against, and the rest abstained. Those voting in favor included 281 Conservatives, the 10 MPs of the Democratic Unionist Party of Northern Ireland, 19 Independents, and 127 Labour MPs. Reflecting the internal division within the Labour party over voting for Johnson’s early election, 138 Labour MPs abstained, along with 34 of the 35 SNP MPs and all 19 Liberal Democrat MPs. Interestingly, after the vote, Johnson restored the party whip to 10 of the 21 former Conservative MPs he had thrown out of the party after they voted in early September for the bill that became the European Union (Withdrawal) (No. 2) Act 2019. All 10, and only those 10, had voted against the Letwin amendment on Oct. 19 and in favor of the election bill yesterday.

It’s obviously much too soon to predict with any certainty what will happen on Dec. 12. But the best guess at this point, based on the recent polls, is that the Conservatives will win a substantial majority in the House. In a poll conducted by YouGov for The Times on Oct. 24-25 among 1634 voting-age citizens in Great Britain, 36 percent of those likely to vote said they’d vote for the Conservatives, 23 percent for Labour, 18 percent for the Lib Dems, 12 percent for the Brexit party, 6 percent for the Greens, and 4 percent for the SNP. In a poll conducted by Opinium on the same days among 2001 citizens in Great Britain, 40 percent said they’d vote for the Conservatives, 24 percent for Labour, 15 percent for the Lib Dems, 10 percent for the Brexit party, 5 percent for the SNP, and 3 percent for the Greens. The critical data in those polls are the margins between the Conservatives and Labour; according to one estimate, if the Conservatives get 36-40 percent of the vote and Labour gets 23-24 percent, the Conservatives will win a majority in excess of 75 seats. It’s of course much too early to predict with any certainty what will happen on Dec. 12. But given what these polls suggest, it seems likely the Conservatives will win a substantial majority. And it’s perhaps not surprising, for that reason, that Johnson would go so far as to disregard the provisions of the Fixed-term Parliaments Act 2011 and get a bill passed that would allow him to hold an early election without first obtaining the support of two-thirds of the House.  

David R. Cameron is a professor of political science and director of the MacMillan Center’s Program in European Union Studies.