Theresa May is facing another backbench rebellion against her Brexit policy, over legislation that strikes out the original March 29 exit date and extends the Article 50 divorce process to at least April 12.
Britain and the EU agreed last week that Article 50 needed to be extended to allow the UK more time to work out its approach to Brexit. The May government now needs to amend the EU Withdrawal Act 2018 and bring it into line with the European Council agreement.
However, anger at the prime minister’s agreement to a Brexit delay is so widespread among Conservative MPs that even the Tory whips’ office is said to be divided on whether to support the delay, which would be formalised through the introduction of a so-called statutory instrument.
One Whitehall source predicted that “half of the whips office will vote against the SI on a matter of principle” an indication that even some of the government’s most loyal supporters do not agree with a Brexit delay.
The prime minister on Monday confirmed that MPs would vote on Wednesday to change the exit date from March 29. She noted that if the vote on changing the exit date did not pass, Brexit would still be delayed because of the supremacy of EU law.
Mrs May told MPs: “Were the House not to pass the statutory Instrument, it would cause legal confusion and damaging uncertainty, but it would not have any effect on the date of our exit.”
Government ministers fear that a major rebellion by Tory MPs would prove embarrassing, not least thanks to the confusion that arose this month when ministers defied the government to abstain on a vote ruling out a no-deal Brexit.
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Julian Smith, the government’s chief whip, told the cabinet on Monday that the voting arrangements on the statutory instrument would have to be “handled sensitively”.
But Mr Smith has himself clashed with Downing Street in recent days over whether Mrs May should set out a timetable for resigning as prime minister in order to convince Eurosceptic MPs to support her Brexit deal.
Senior Conservative sources said that the arrangements for Wednesday’s vote had “not yet been discussed”. The instrument, however, is likely to pass thanks to Labour, which is set to vote in favour of the extension.
Mark Elliott, professor of public law at Cambridge university, said parliament needed to align the definition of exit day in the 2018 Withdrawal Act with the decision reached at European Council last week to eliminate any uncertainty.
“If it does not do so, individuals will be faced with competing legal rules from 29 March, ie those deriving from still-relevant EU law and domestic rules made in the anticipation of Brexit occurring on 29 March,” he wrote on his website Public Law for Everyone.
Prof Elliott said such a situation “would place individuals in an intolerable position and would create enormous confusion, even though ultimately the legal position, that the EU rules would take priority, is clear”.
