An extension of Article 50 is widely mooted in Westminster and Brussels, writes John Ryan (LSE). What may look like a relatively easy alternative step in order to avoid a cliff edge No Deal Brexit on first sight, is in fact a much more complex matter – not unlike many other details of Brexit.
If MPs reject a No Deal Brexit on 13 March, the Prime Minister will give Parliament a vote on 14 March on whether the government should “seek a short, limited extension to Article 50” which could then be negotiated with the EU. Should MPs vote for the extension, the government would have to legislate to change the exit date.
Theresa May said her pledge to hold these votes would fit the timescale laid out in Yvette Cooper’s private member’s bill aimed at preventing No Deal. Some ministers had threatened to resign in order to back the Labour MP’s bill, while the Prime Minister said she did not want Article 50 to be extended: “Our absolute focus should be on working to get a deal and leaving on 29 March.” May also expressed concerns that an extension beyond the end of June would mean the UK taking part in the European Parliament elections and that a short extension “would almost certainly have to be a one-off.” “If we had not taken part in the European Parliament elections, it would be extremely difficult to extend again, so it would create a much sharper cliff edge in a few months’ time,” she said.
It is unclear how the Prime Minister would whip on that motion. If she whipped her cabinet and ministers in favour of an extension, it would be likely to prompt resignations. It is likely, however, that the motion extending Article 50 would pass, given it would be certain to have substantial support from both the Conservatives and the opposition.
Image by DAVID HOLT, (CC BY 2.0).
With barely a week to go before Brexit day, EU leaders are due to gather for their annual spring summit on 21-22 March. This is when some EU officials think the UK might ask for more time to conclude Brexit by requesting an extension to Article 50. This would need to be agreed unanimously by the EU27 and there is no time limit for it to do so – it could happen very late.
If Britain asks for an extension and the EU27 grants it, both houses of Parliament must vote to allow the legally binding exit date of 29 March to be changed.
EU27 leaders will insist that any extension of Article 50 should be a one-off, meaning that length of the extension and purpose need to be carefully defined and examined. What is the goal to be achieved during the extension timeframe and what good would this extension do? Would the proposed period be long enough to ensure that all work can be finished in time?
As a way to avoid a hard Brexit the EU is likely to support an extension, but for now, the Conservative Party and the British media appear to be largely negotiating among themselves rather than with the EU. Extending Article 50 is not a simple process, but the EU is likely to do what it can to keep the Withdrawal Agreement on the table. So what are the options?
Under Article 50, the date of exit from the EU can be delayed – but only if the EU27 remaining Member States agree unanimously to an extension. Scenarios in which a request for an extension of Article 50 is for a delay of one to three months: requested by the UK in order to pass the legislation that is required to implement the Withdrawal Agreement in the event that Theresa May’s deal is approved by the Commons before 29 March. This has been suggested by the Foreign Secretary. It is unclear how the EU leaders would react to such a request.
Another scenario is an extension of Article 50 recognising that there has been a shift in the UK position: this might be because support has shifted towards holding a general election or another referendum. Although the EU has said it will not re-open negotiations on the Withdrawal Agreement, it has indicated a willingness to make changes to the Political Declaration on the future UK-EU relationship.
In these two scenarios, the extension would need to be long enough to meet UK constitutional requirements. A general election needs a minimum of five weeks if it is based on a government-engineered vote – and at least seven weeks if it followed a majority “vote of no confidence” in the government. A second referendum would take considerably longer – at least 22 or 28 weeks, depending on the complexity of the question. This would take the process to October – even if Parliament took a decision in March to hold a second referendum.
An extension beyond one to three months might therefore well span the European Parliament elections – scheduled to take place on 23-26 May 2019 – with the newly elected European Parliament sitting for the first time on 2 July. If Article 50 is extended until no later than 1 July 2019, there would be no need for European Parliamentary elections to take place in the UK.
If Article 50 is extended beyond 2 July, the UK may need to participate in the elections. According to the European Parliament’s legal service, failure to hold elections in the UK would mean that the UK would be in breach of EU treaty articles which give EU citizens the right to be represented in the European Parliament – and to vote and stand in its elections. This could lead to legal proceedings against the UK at the European Court of Justice – but by the time the case would reach the court the UK may have left the EU.
Westminster is not the only Parliament whose approval of the Withdrawal Agreement is needed. The European Parliament’s consent is also required – and the final sitting of the outgoing Parliament before the election is scheduled for 18 April 2019.
There is one further complication should Brexit be delayed beyond 1 July 2019. Following the European Parliamentary elections, the process begins for the appointment of a new President of the European Commission and other Commissioners – with the new Commission not taking office until the beginning of November. This will impact the process of negotiating long-term future relations between the UK and EU in any event.
The big problem for MPs is that the ‘meaningful vote’ they will be given by 14 March will be a vote to defer the cliff edge rather than to eliminate it. Whether the end of the Article 50 process is 29 March, 30 June or December 2020 when the current budget period ends, Parliament will still face the same choice: a negotiated exit, a No Deal exit, or no Brexit, whether facilitated by another referendum or by a vote of MPs.
While discussions in Westminster are more centred around a short extension, in Brussels, a lengthy extension of the negotiating period is gaining traction as the EU’s default position should the Commons continue to reject May’s deal, and a request emerges. Replacing the 21-month transition period with extra time as a member state would allow the UK and the EU to develop their plans for the future relationship with the aim of making the contentious Irish backstop redundant. Brussels is determined to avoid offering a short extension only to have to revisit the issue in the summer when the UK government may well again fail to win backing from parliament. In comparison, a 21-month extension would cover the EU’s budget period.
While an extension of Article 50 is a highly complicated matter and could cover period anywhere between one to 21 months, the on-going chaos and brinkmanship in Westminster look more and more likely to lead the UK into that direction.
This article gives the views of the author, and not the position of LSE Brexit, nor of the London School of Economics.
Professor John Ryan is a Visiting Fellow at LSE IDEAS. He has been a researcher at CESifo, Munich, Germany, St Edmund’s College, University of Cambridge and the German Institute for International and Security Affairs, Berlin, Germany. John is working as a senior partner in consultancy as a Brexit adviser for EU, Gulf and Asian clients.