Extending Article 50 may prove a tall order for London and Brussels

17 January 2019 1:12pm

16 January 2019. By Zosia Wanat.

Delaying the Brexit deadline isn’t an option that the UK government should take for granted.

While it could call off the Brexit process entirely by unilaterally revoking Article 50, the EU treaty's exit clause, just to extend the deadline requires the unanimous consent of the EU’s 27 other countries.

That permission isn’t guaranteed. EU leaders will be wary of giving Theresa May yet more time to continue her unsuccessful approach of trying to squeeze more concessions out of the existing deal. And delaying Brexit by more than a couple of months could play havoc with European Parliament elections in May.

It’s hard to imagine the EU allowing an extension unless there’s a significant policy change in the UK, a senior EU diplomat told MLex today. That could include a change of stance from May, a new prime minister or the promise of a second public vote on Brexit.

“In that case, you have a reason to extend the whole process,” the diplomat said. “We’ll only extend if we have a clear direction of where we’re moving.”

The EU is willing to restart talks if the UK’s “red lines” move, chief negotiator Michel Barnier said today. That could include a willingness to remain in the customs union, for example.

But the EU has repeatedly made clear that the withdrawal agreement is the “best possible deal” that it can offer within the existing negotiating parameters.

EU elections

Extending the Brexit deadline by more than three months will be particularly difficult because it will interfere with the new term of the European Parliament, which begins in July.

If Britain is still an EU member by then, it will have to be represented in the assembly, holding on to seats that have already been earmarked for other countries. Of Britain’s 73 seats, 27 are due to be allocated to other members that are slightly under-represented and 46 will be kept in reserve for new countries that might later join the EU, under current plans.

And later this year, when a new European Commission takes shape, the new president would have to hand out a commissioner job to a British nominee, only for the job to be dissolved if and when the UK finally leaves.

“While we understand you might need more time, I think it’s a bad thing to go with Article 50 beyond the European election day,” said Guy Verhofstadt, who leads the parliament’s Brexit working group, at today’s debate. “It would only continue the uncertainty for businesses and for people.”

May’s choice

All of this puts pressure on May to come up with a new strategy, fast. If there’s no definitive progress by March 29, the UK will leave without a deal: There will be no transition period, no legal base of cooperation between London and Brussels and no assurances for citizens and businesses. That will be bad for the EU but much worse for Britain.

In a statement today, May acknowledged the need to set a new course. “The EU would only extend Article 50 if it was clear that the UK was moving towards a plan of an agreed deal,” she said.

But she also said that her policy of leaving the bloc on March 29 remains unchanged. And it’s hard to see how negotiators can reach a new deal by then, given that the existing agreement was the product of months of intensive talks.

And there’s not much chance of getting a lightly-edited version of the current agreement through Parliament given the scale of the drubbing it received last night, by 432 votes to 202.

Emergency brake

There is one more option, albeit one that May has also ruled out: cancelling Brexit altogether. Putting aside questions of whether the UK could organize and conduct a referendum before March 29, the government does have the right unilaterally to revoke Article 50, according to the EU Court of Justice, the bloc’s highest judicial authority.

May could pull this emergency brake at any time to stop the UK driving off the edge of the cliff on March 29. But if she does so, there’s no going back: The decision must be “unequivocal” and “unconditional,” the court has said. The UK would have to abandon Brexit entirely or begin the whole two-year process from scratch.

For many in the EU, who mention at every occasion their regret at the UK’s choice to leave, this would be the preferable outcome. That sentiment appeared to be behind a tweet last night from Donald Tusk, president of the European Council.

“If a deal is impossible, and no one wants no deal, then who will finally have the courage to say what the only positive solution is?” he asked.

Brexit Special Report