This blog offers a scenario analysis of the possible Brexit outcomes facing the UK in the late Summer of 2019, including a Deal, Extension to Article 50, No Deal, Parliamentary legislation on Brexit, and Revoking Article 50. It was originally published by SPICe (Scottish Parliament) on 30 August 2019.

Possible Brexit Scenarios

As the Scottish and UK Parliaments conclude their summer recess, the focus of British politics has returned to the dominant issue of how, when (and whether) the UK will exit the European Union. With the announcement that the Queen has approved the Prime Minister’s request to prorogue Parliament for five weeks in September and October – just weeks before the UK is due to exit the EU on 31 October 2019 – the options on Brexit appear to have narrowed. However, there are still a variety of scenarios that may occur, and this blog will reflect on the five most likely developments on Brexit in the coming months. These are:

• Deal
• Extension to Article 50
• No Deal
• Parliament legislates on Brexit
• Revoking Article 50

1. Deal

Prime Minister (PM) Boris Johnson’s stated goal is for the Withdrawal Agreement (WA) to be re-negotiated before 31 October 2019. The original WA, which was concluded over a two-year period by the UK Government and the European Union, was rejected three times by the UK Parliament in early 2019. The WA focuses on three issues: citizens’ rights, the UK’s financial settlement (‘divorce bill’), and the Irish border. In 2017, the European Council required, and the UK agreed, that ‘sufficient progress’ must be made on the WA before moving on to discuss the framework for future UK-EU relations.

At present, the main obstacle to a Deal is the ‘backstop’ – an insurance policy designed to prevent the return of a hard border in Ireland, which would only be activated if the UK and EU failed to negotiate a future trade agreement at the end of the transition period. Two types of backstop have been discussed:

• a Northern Ireland-only backstop, which keeps NI in the EU’s economic area (for customs and the regulation of goods), requiring a ‘border’ down the Irish Sea (between Great Britain and the island of Ireland).
• a UK-wide backstop, which keeps NI in the EU’s economic area and extends the single customs territory to the whole of the UK (which was part of the WA) to prevent the creation of a border down the Irish Sea.

The PM’s preference is to seek ‘alternative arrangements’ to the backstop to avoid the UK being bound by EU rules, such as trusted trader schemes and electronic pre-clearance checks away from the NI border. However, some Oxford academics have argued that, while technology ‘may make it possible for some checks to be carried out away from the border’ there will still be ‘a need for new infrastructure at or near the border’. Furthermore, senior police officials in NI have expressed concerns that any infrastructure at or near the border could be subject to paramilitary attacks.

If the PM is unable to secure alternative arrangements, he may re-consider the first proposal made by the EU – a NI-only backstop – to secure a Deal by 31 October. However, this could affect his parliamentary support (i.e. DUP) and would mean that NI was more closely aligned with the Republic of Ireland than the rest of the UK on customs and trade.

If the PM does negotiate a new Deal, it is unlikely there would be enough time to ratify the WA in the UK Parliament, Council of the EU and European Parliament by 31 October, leading us to the second scenario…

2. Extension

The UK Government may request a further extension to Article 50 beyond 31 October. However, the EU would likely only agree to this under certain conditions: (1) on technical grounds, to get final approvals for any agreed Deal; or (2) a substantive change in UK politics, such as a general election or referendum.

It is unlikely that the EU would agree to a further extension if there was no sign of reaching a Deal, and without an end date in sight. For whilst the EU wishes to avoid No Deal, it equally wishes to avoid extending the Brexit impasse indefinitely or compromising its principles.

However, given that the PM has stated that he plans to leave the EU on 31 October ‘do or die’, it seems unlikely he will request an extension, leading us to the third scenario…

3. No Deal

If there is no agreement on the WA by 31 October, and no extension, the UK will leave the EU without a Deal. ‘No Deal’ is the legal default mechanism under Article 50, or rather, the absence of policy action.

Yet ‘No Deal’ could also be interpreted as a tactic to push the EU towards compromise. EU officials have insisted that they will not re-negotiate the WA. However, they may agree to do so under specific conditions: (1) to change the backstop to NI-only (or find workable alternatives), or (2) if the UK softened its red lines, which would open up a more substantive discussion (about, for instance, EFTA membership).

If the UK Government does not meet these conditions, the UK would become a ‘third country’ in relation to the EU on 1 November. It would still have to negotiate the three main items in the WA – citizens’ rights, backstop, divorce bill – but without the transition period and at a time of ‘significant disruption’ according to UK Government reports. Furthermore, the legal basis for UK-EU negotiations would change, as each of the EU’s 27 Member States could amend or veto proposals, putting the UK into a weaker negotiating position.

Some MPs have sought to explore ways to avoid this No Deal scenario, leading to our fourth scenario…

4. UK Parliament legislates on Brexit

In March 2019, a majority of MPs in the House of Commons (321 to 278) voted to reject leaving the EU without a Deal. Discussions have been underway this summer about how the UK Parliament might act to reflect the will of the majority of MPs, which include:

• No Confidence motion

MPs may table a motion stating that the House has no confidence in the UK Government. If passed, there is a 14-day period for MPs to form a new government. At present there is apparent disagreement between and within parties about which MP could command a majority to lead an alternative government. According to parliamentary procedure, if no alternative government is formed, this would trigger an early general election.

• Parliament takes control of the order paper

MPs could seek to take control of the order paper to create parliamentary time to pass new legislation, for instance, seeking to extend Article 50, a referendum or a general election. MPs could apply to the Speaker for an emergency debate, seek an Opposition Day to put forward a motion, or amend other pieces of legislation to include opposition to No Deal.

• General Election

MPs may seek to trigger a general election under the mechanisms described above before 31 October. Parliament would shut down 5 weeks before the election poll, allowing MPs time to campaign. This would likely require an extension to Article 50.

However, as the PM has received the assent of the Queen to prorogue (suspend) Parliament from the second week of September to 14 October, this significantly limits the time MPs would have to pass legislation on Brexit. Furthermore, if a Vote of No Confidence (VONC) is passed within this curtailed timeframe, the PM also has the option of delaying a general election until after Brexit Day. A legal challenge to prorogation has been launched by MPs and is currently being considered in the Scottish Court of Session.

5. No Brexit – Article 50 revoked

Finally, there’s the option of Article 50 being revoked. Whilst this is an unlikely option under the current UK Government, if there was a new pro-remain Prime Minister following a VONC or a General Election then he or she may decide to maintain EU membership.

Conclusion

As Parliament returns from its summer recess, No Deal looks the most likely scenario, especially following the decision to prorogue parliament, and also given the lack of movement on re-negotiating the WA, the lack of parliamentary unity on ways to prevent No Deal, and the EU’s position that No Deal is preferable to undermining the EU’s principles. However, as with any scenario analysis, the probability of this outcome may change as a result of the UK Government and UK Parliament’s actions over the next few weeks, and the EU’s response to these actions.

This blog was originally posted as a Guest Blog by Dr Eve Hepburn on SPICe Spotlight (Scottish Parliament), which can be read here.