What happens if Boris Johnson does not send the Brexit delay letter to the EU?

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MPs backed a rebel amendment this afternoon which has scuppered Boris Johnson‘s Brexit plan. 

The Prime Minister wanted MPs to formally back his deal today but a proposal put forward by Sir Oliver Letwin to ruin the premier’s hopes of making Brexit progress was passed by 322 votes to 306. 

The amendment will now force the PM to ask the EU for a Brexit delay under the terms of the anti-No Deal law known as the Benn Act.  

The amendment does not kill off Mr Johnson’s deal and it will still be possible for him to deliver Brexit by October 31. 

But the path to fulfilling his ‘do or die’ Halloween pledge will now be fraught with difficulty and the chances of a Brexit delay have increased exponentially. 

Here is a breakdown of what is likely to happen now the amendment has been backed by MPs. 

What happens if Boris Johnson does not send a letter to the EU asking for a Brexit delay?

The PM will now seemingly have to comply with the Benn Act and send a letter to Brussels asking for a Brexit extension. 

The government has long maintained that it will comply with the law but Mr Johnson muddied the water immediately after the Letwin result was announced as he said he ‘will not negotiate a delay with the EU and neither does the law compel me to do so’. 

The Prime Minister’s official spokesman then refused to answer questions about whether the PM will send the letter required by the Benn Act. 

‘We are not going to add anything to the PM’s words in the House,’ the spokesman said. 

However, the spokesman did repeat that ‘governments comply with the law’ in a hint that the PM could send the letter while also potentially making clear to the EU that he does not want the bloc to grant a delay. 

The PM has until 11pm this evening to comply with the terms of the anti-No Deal legislation.  

Boris Johnson, pictured in the House of Commons today, wanted MPs to back his Brexit deal today but his plans were scuppered

Boris Johnson, pictured in the House of Commons today, wanted MPs to back his Brexit deal today but his plans were scuppered

Boris Johnson, pictured in the House of Commons today, wanted MPs to back his Brexit deal today but his plans were scuppered

The PM's hopes of making Brexit progress were torpedoed after could be scuppered by an ment put forward by Sir Oliver Lewtin which has cross-party support

The PM's hopes of making Brexit progress were torpedoed after could be scuppered by an ment put forward by Sir Oliver Lewtin which has cross-party support

The PM’s hopes of making Brexit progress were torpedoed after an amendment put forward by Sir Oliver Lewtin was agreed by MPs. It is designed to force the PM to ask for a Brexit delay

Regardless of what happens with the letter, the PM is expected to bring forward the Withdrawal Agreement Bill – the legislation needed to actually make Brexit happen – on Monday this week to try to crash it through Parliament as quickly as possible. 

If he is able to get MPs and peers to agree to the draft legislation in the coming days he would then be able to hold the ‘meaningful vote’ on his deal, paving the way for the UK to leave the EU on time.

What legal loophole does Boris Johnson think he has found? 

The PM will have sought extensive legal advice on exactly what the Benn Act requires him to do. 

Unless the government has come up with an unexpectedly brilliant and top secret legal argument against having to send the letter to the EU, it is hard to see how the premier can avoid asking the bloc for an extension. 

However, it is possible Number 10 may well have concluded it can send the letter while also spelling out to the EU, potentially in a second letter or through other means, that the government does not actually want a delay in the hope one is not offered.

What can Remainers do to stop the PM if he does not comply with the Benn Act?

If the PM fails to send the letter or is believed to have tried to frustrate the purpose of the Benn Act then Remainers will almost certainly launch immediate legal action and the battle over Brexit will head to the courts. 

The turnaround on any legal action would likely be swift with a potential Supreme Court hearing in a matter of days. 

What does the Benn Act actually ask the PM to do?

Contained within the legislation is a pre-written letter which the PM is required to sign and send to the president of the European Council, Donald Tusk, by the end of today if no Brexit deal has been agreed by MPs.

It asks the EU to postpone Brexit until January 31 next year. The letter reads: 

‘The UK Parliament has passed the European Union (Withdrawal) (No. 2) Act 2019. Its provisions now require Her Majesty’s Government to seek an extension of the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty, currently due to expire at 11.00pm GMT on 31 October 2019, until 11.00pm GMT on 31 January 2020.

‘I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union, including as applied by Article 106a of the Euratom Treaty. The United Kingdom proposes that this period should end at 11.00pm GMT on 31 January 2020. If the parties are able to ratify before this date, the Government proposes that the period should be terminated early.

‘Yours sincerely, Prime Minister of the United Kingdom of Great Britain and Northern Ireland.’

What happens now to Boris Johnson’s deal?

The Prime Minister’s deal is very much alive and he could still deliver Brexit by October 31 but he will have to put his agreement into law first.

The amendment withholds support for the PM’s deal until such a time as the government has brought forward and passed the Withdrawal Agreement Bill. 

By failing to agree to a Brexit deal by close of play today, the provisions outlined in the Benn Act will now be triggered and the PM will have to ask the EU to push back the current departure date.  

The amendment effectively postpones the ‘meaningful vote’ on the accord until the government has got its Withdrawal Agreement Bill through Parliament. 

The thinking is that by withholding support for the deal until the key Brexit legislation is in place, MPs will further protect against the possibility of the UK leaving the EU without a deal on October 31. 

Some Remainers were suspicious that if MPs backed the PM’s deal today and there was no extension, Brexiteers who want a No Deal split could have then tried to scupper the passage of the laws needed to deliver an orderly exit, causing a bad break on Halloween.

How likely is it that MPs and peers will agree to the Withdrawal Agreement Bill?

The Letwin amendment effectively robbed the PM of the chance to test whether there is a majority for his deal. 

That means that nobody will know for certain whether there is a majority in favour of the so-called WAB. 

Even if there is a majority it is likely to be a slim one which will make the passage of the legislation incredibly difficult as rebel MPs potentially try to amend and change it. 

Draft laws have been rushed through parliament in quick time before but whether something as divisive as the legislation to deliver Brexit could be dealt with equally as swiftly is unclear. 

What happens if the PM is able to get the Brexit law agreed and win a ‘meaningful vote’ before October 31? 

The UK could still leave the EU on the current timetable but the closer we get to Halloween the tougher that becomes and the chances of a delay increase. 

If the PM can get the deal signed off by MPs by the end of the coming week – a big if – his ‘do or die’ pledge could still be stuck to. 

But anything beyond that and time will get extremely tight because once MPs have agreed the deal it still has to go through the European Parliament. 

What is the EU likely to do? 

If the PM sends the Brexit delay letter, the bloc will then have to decide whether to offer an extension. 

The most likely scenario is that the bloc will keep its powder dry and not formally respond until it has seen whether the PM can win a vote in the Commons this coming week on the Withdrawal Agreement Bill. 

If he can, then Brussels will probably hold fire on offering an extension on the grounds that the UK could still agree to a deal and leave on time. 

If he cannot win a vote on the WAB this week and his deal looks dead then the bloc will face more pressure to make a final decision on any delay. 

It is thought in such circumstances the bloc would offer a postponement in order to stop a No Deal Brexit. 

That would pave the way for a general election potentially being held before the end of the year. 

Could the EU refuse to grant a delay? 

Yes. Emmanuel Macron and Leo Varadkar have both suggested that they are against any further delay but Angela Merkel reportedly said an extension would be inevitable if the deal is rejected. 

It is possible that the EU could decide to cuts its losses on the grounds that the Brexit stalemate has gone on for too long. 

But such a move appears unlikely because it would result in the bloc taking the blame for a No Deal split. 

Could there be an emergency EU summit? 

If the PM is able to make progress in the coming days and win a vote on the WAB – potentially on Tuesday – but he is then unable to get everything done by the end of the week there could be an emergency summit held in Brussels on October 28. 

If the PM’s deal is still alive but more time is needed to get it through Parliament European leaders could agree to a short extension. 

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