The debate over the Benn bill is plagued by a fundamental misunderstanding

Contrary to some claims the bill does not grant the EU the power to extend membership indefinitely

September 04, 2019
Hilary Benn, Labour MP for Leeds Central. Photo: Brian Lawless/PA Archive/PA Images
Hilary Benn, Labour MP for Leeds Central. Photo: Brian Lawless/PA Archive/PA Images

In order to avoid imminent no-deal withdrawal from the EU on 31st October, the Labour MP Hilary Benn has proposed a bill on extending EU membership. The bill (which might be amended, or might not ultimately become law) has has attracted controversy from those who argue that it would mean that the EU would get to decide how long the UK remains a member state. John Longworth, chairman of Leave Means Leave, is one culprit. Another is MP Bill Cash. But this reading is simply untrue.

First of all, according to the bill, parliament still has the choice in the first place to vote to approve the withdrawal agreement, or in favour of a no deal outcome. If it has not voted either of those options by 19th October, the prime minister is obliged to ask the EU for an extension of the UK’s membership until 31st January 2020 (Clause 1). If the EU agrees to this, the PM has to accept that extension decision (Clause 3(1)).

But the other point is that the UK cannot control what the EU does. The EU might simply refuse an extension (it has to agree by unanimous vote of the 27 EU countries: the UK does not have a vote at that point, but rather a separate power to agree or reject the EU decision). The bill does not set out what happens in that case, but in practice it would leave the UK with a very quick choice between leaving with no deal, ratifying the withdrawal agreement or revoking its notice to leave the EU.

But what happens if the EU agrees to an extension to a date other than 31st January 2020? Here’s where the bill is particularly controversial. It starts by saying that in that case, the PM must notify his acceptance of that decision within two days (Clause 3(2)). This is the bit that has attracted fierce criticism, particularly because a journalist tweeted a copy of the text with the next bit of the bill left off. (His later correction did not deter those who seized upon his initial tweet).

Yet this is misleading, since bits of a law cannot be read in isolation. Indeed, the very next part of the bill (Clause 3(3)) then creates a vital exception. Effectively, it would provide for a parliamentary veto. It says that the PM could, within two days, table a motion to support this alternative extension date, which parliament could then vote down. In that case, the PM would not be obliged to accept the extension decision.

It’s possible, as some believe, that parliament would not ever want to turn down an extension decision. Maybe, but that would be a political choice, not a legal obligation. It is simply untrue to claim that the EU would automatically decide on any extension decision and that the UK could do nothing about it.

Anyway, there are signs that a majority in parliament would not be that enthusiastic about a very long extension decision. For instance, a group of MPs (enough to cancel out the majority against the government last night, which took control of the parliamentary agenda) have tabled amendments designed to focus on leaving with a withdrawal agreement. Because they favour leaving with a WA, rather than another referendum, they would be unlikely to agree to an extension of several years—even if the EU were inclined to agree to such an extension. So the “endless automatic membership decided by the EU” argument is simply a false criticism of the bill.

Unfortunately, this is far from the first time that the Brexit debate has included misleading or inaccurate claims. Hopefully, whatever happens next, the quality of debate will improve. But I doubt anyone is holding their breath waiting for this to happen.