Anthony Hilton: Theresa May’s only path is to revoke Article 50 and ditch Brexit

Assuming that Theresa May does not get her EU agreement through the House of Commons today — and that seems likely — what happens next?

There is May’s wait for Plan B which gives her three days to come up with another deal but this is unlikely to amount to much. There’s the possibility of a Norway option which might appeal to most MPs because it spells a softer Brexit. But how do we get through those negotiations in the time allowed?

There is a possible vote of no confidence from Labour which the Opposition then hopes will usher in a general election. There is also the chance of a People’s Vote which would ask if voters really want Brexit given we now know more what it looks like. And there is the possibility that, if we don’t get our act together by March 29, we have a No Deal.

Most of these scenarios will require more time and an extension of Article 50 — the divorce agreement — which otherwise kicks in on March 29. But this requires all 27 countries, separately, to agree. It is not an EU matter which can be handled and dealt with by the Commission; every separate government has a veto.

It is assumed by the British that for a general election or a referendum, this would be forthcoming, though not for more negotiations. But the member states offer absolutely no guarantee of such a time out. There might be one or two countries who are so fed up with Britain, who don’t really care what it does, or who have an eye on British weakness, who might refuse, or delay making a decision.

The other possibility might be that the 27 countries extend Article 50 but only for a month or so. This is because the European elections take place in June and Brexit has to be done by then.

The elections are a regular five-yearly event but this time it is also when Britain gets out of the European Parliament and the seats are reallocated. Five months later the European Commission also changes: Jean-Claude Juncker will go and new commissioners will be appointed (the EU’s chief negotiator for Brexit, Michel Barnier, is scheduled to leave so the EU is also under pressure).

Nothing is ever certain in politics and it may be that some other mechanism could be adopted, but it does not look likely at the moment. Instead we are likely to crash out of the EU with no deal. Though some relish that, the chances are that it would be incredibly damaging and costly.

However, there is an alternative. The British Government could simply withdraw Article 50. This has only just been clarified but the European Court of Justice last month ruled that “when a member state has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that member state is free to revoke unilaterally that notification”.

The court added: “A member state cannot be forced to leave the European Union against its will.”

That revocation lasts only until March 29 — or, if Article 50 is temporarily extended, then to whenever that new date is. The point is, however, that time is of the essence. It would be no good leaving the EU and then trying to return, or leaving the EU and thinking the transition period would be okay to sort something out. There is no guarantee that the EU will treat us favourably, or would have us back. And if it did, we certainly would not return on the present favourable terms.