How Jacob Rees-Mogg made the case for extending Article 50




Brexit Secretary David Davis did not have a good morning. The man with one of the most difficult jobs in British politics appeared before the Brexit Select Committee, where he was subjected to a grilling from its chair, Hilary Benn, and its MPs.

As ever, the transcript of the exchange does not make for easy reading. Davis will have hated every minute of the interrogation. But it was also surprising in one specific way: Jacob Rees-Mogg set upon Davis, and in doing so, made quite a good point entirely by accident.

Chair of the powerful pro-Brexit European Research Group, Rees-Mogg pressed Davis on the likely transitional deal that Britain will enter into after formal exit in 2019. The assumption is that this will take place on the EU’s terms: Britain will accept new EU rules and regulations, but having left, it will have no say in what they are.

For Rees-Mogg, this sort of thing represents an unacceptable loss of sovereignty. He challenged Davis: “If on 30th March 2019, the UK is subject to the jurisdiction of the ECJ, takes new rules related to the single market and is paying into the European budget, are we not a vassal state?”

Davis replied: “If that were going to be the case in perpetuity, my answer would probably be yes, but the answer for a short time, no.”

To this, Rees-Mogg shot back: “It’s hard to think of any precedent in the world where an independent nation has taken the judgments of a foreign court as its superior and immediate law without having any judge on that court.”

He asked Davis to "be honest about it. We are de facto staying in the EU for two more years," so "why aren't we just extending Article 50?"

What to make of all this? The short answer—and you won’t find me saying this often—is that Rees-Mogg is right, though he meant his Article 50 point rhetorically. Strip away the ironic tone and he's not far off the mark.

Turn first to the "vassal state" remarks. A transition in which Britain is forced to accept new EU laws without any say in making them would indeed render it a "lackey” of the EU, even if for a short period. On this much, Remainers will be in firm agreement with Rees-Mogg.

His conclusion—that Britain might as well extend Article 50—also gets at something Remainers have long argued.

For Rees-Mogg, the idea of continued EU membership is so toxic to him that he really presented it to Davis as a horror scenario, in order to make the point that the government must fight for better transition terms, or even walk out of talks.

But for months now, academics and lawyers have seriously discussed such a prospect. The idea is that Article 50 could be extended to cover any transitional period, during which time Britain would still technically be a member of the EU.

By Remaining in the EU for a little longer, Britain would retain its say in the making of EU law. This would circumvent the “vassal state” problem: yes, Britain would be accepting EU rules, but it wouldn’t be doing so passively. It would have a voice at the table, much as it does now. If Rees-Mogg really wants Britain to remain sovereign during the transition, this is indeed how to do it.

The case for requesting such an extension is strong. It would require assent from the EU27: various experts have suggested to me that such assent would be forthcoming.

Whether the government comes round to the idea is another matter—and Davis dismissed it out of hand to the Committee. But note that, after it was defeated on the EU withdrawal bill last year, the government backed down on its plan to write the date of EU exit into UK law. It feared that MPs would rebel again and wanted to save itself further embarrassment.

That means the option of extending Article 50 is still open. Rees-Mogg would of course oppose this course of action. But in his playacting, he made rather a good case for it.