Extending Article 50: could Brexit be delayed?

Article 50 and the Withdrawal Agreement

As provided for under Article 50 TEU, the UK will cease to be a Member State of the EU on 29 March 2019, two years to the day since issuing its notification, unless it revokes its notification to leave or agrees an extension of the Article 50 negotiating period with the EU. Under Article 50, the date of exit from the EU can be delayed if the EU agrees to this unanimously.

The Government has been defeated twice in the House of Commons, on 15 January 2019 and 12 March 2019, on motions seeking approval for the Withdrawal Agreement (WA) and the Political Declaration (PD) on future UK-EU relations agreed by the European Council in November 2018.

The second defeat came after the Government had agreed a new instrument with the EU relating to the most contentious part of the WA, the Northern Ireland backstop, giving legal assurances over the EU’s commitment to negotiate a future agreement to replace the arrangement and confirming that the UK would be able to seek arbitration if the EU does not act in good faith in the negotiations.

Government, Opposition and EU views on Article 50 extension

The Prime Minister had repeatedly stated her opposition to extending Article 50. However, on 26 February, the Prime Minister committed the Government to holding a vote in the House of Commons on 14 March on extending Article 50, if the Government had not won a ‘meaningful vote’ in the Commons by 12 March and if the House subsequently voted against leaving the EU without an agreement. This followed reports that Government Ministers and Conservative MPs were preparing to vote for a cross-party amendment guaranteeing Parliamentary time for legislation providing for a vote on Article 50 extension.

After voting against leaving the EU without an agreement on 13 March, the Commons approved the Government’s motion on 14 March agreeing that it should seek an Article 50 extension. The motion stated that a one-off extension of Article 50 ending on 30 June 2019 for the purpose of passing the necessary EU exit legislation would be sought if the Commons had approved the WA and PD by 20 March. Alternatively, the motion noted that if these had not been approved that the European Council was highly likely to require a clear purpose for any extension, not least to determine its length, and that any extension beyond 30 June 2019 would require the UK to hold European Parliament elections in May.

The Prime Minister wrote to the President of the European Council, Donald Tusk, on 20 March requesting an Article 50 extension until 30 June 2019. She said that she intended to hold another ‘meaningful vote’ as soon as possible and that the extension would be required to pass legislation to implement the WA. President Tusk responded that a short extension would be possible, but would be conditional on a positive vote on the WA.

Statements from the EU institutions and Member States have previously suggested a willingness to agree to an Article 50 extension if the UK requests this, but provided it is for a specific stated purpose. There have been indications that EU leaders would be prepared to extend Article 50 and re-open talks if there was a major shift in the UK position. But such talks would focus on possible changes to the PD to reach agreement on a more specific framework for the future relationship that could win majority support in the Commons for the WA and PD as a package. The EU continues to affirm that negotiations on the WA will not be re-opened.

Scenarios in which an Article 50 extension would be required

As the motion adopted on 14 March acknowledges, an extension of Article 50 would be required if the WA is approved shortly before 29 March, in order to provide time to pass legislation to prepare for Brexit. Legislation to implement the WA must be enacted prior to the UK leaving the EU.

If the UK leaves the EU without a deal, then more time may also be needed to pass other legislation required to prepare for Brexit, including the Trade Bill, Agriculture Bill, Fisheries Bill, Immigration Bill, Healthcare (International Agreements) Bill and the Financial Services Bill, as well as statutory instruments required to prepare the statute book for Brexit. 247 of an estimated 600 statutory instruments required to prepare the statute book for exit day had made their way through Parliament as of 12 March 2019.

The Labour party has previously called for a General Election if the Government is unable to get Parliamentary support for a withdrawal agreement. A vote of confidence under the Fixed-term Parliaments Act 2011 was tabled by Jeremy Corbyn following the rejection of the WA of 15 January but was unsuccessful. If there was another no confidence vote which succeeded, at least seven weeks would need to pass before a General Election could be held (including two weeks in which another Government could be formed). If the Government itself decided to hold an election, at least five weeks would be required.

A longer extension would be required under the scenario advocated by the cross-party People’s Vote campaign of holding another referendum. In order to hold another referendum Parliament would need to pass legislation to allow for the poll to take place. This would also involve question testing by the Electoral Commission and be followed by a statutory campaign period of 10 weeks. The amount of time required in Parliament would be particularly hard to predict.

Estimates as to how long it would take to hold a referendum vary from 16 weeks (the Liberal Democrats), to 22 or 28 weeks depending on the question (UCL Constitution Unit) to one year (the Government). This would mean the earliest a referendum could take place is July under the Liberal Democrats scenario or late August or October under the Constitution Unit’s timetable.

Role of European Parliament

One complication of extending Article 50 beyond May 2019 is that European Parliament (EP) elections are due to take place on 23-26 May 2019 and are currently planned on the basis of the UK not taking part.

The final sitting of the outgoing EP is scheduled for 18 April 2019 and the new Parliament will sit for the first time on 2 July. This creates a further complication given that the EP’s consent is required for the WA. It would be possible for the EP to have its consent vote on the WA prior to UK approval, but the intention within the EP is to wait until the House of Commons approves the WA before holding its own vote. Alternatively, if the WA has not been approved by the EP by 18 April 2019, a recall of the outgoing Parliament is possible up until the newly elected EP sits for the first time on 2 July. EU law provides that the outgoing EP remains in office until the new one sits for the first time, and the EP’s rules of procedure provide that the President of the Parliament can recall the EP following a request by the majority of its Members or from the Commission or the Council.

While the WA has to be approved by the EP, the PD does not. If an extension of Article 50 therefore resulted in a change to the PD but not the WA (and the WA had already been ratified by the EP) then the EP would not need to be recalled to give its approval.

UK participation in the EP elections if Article 50 extended beyond 1 July

A leaked Council of the EU document on 15 March indicated that an extension of the Article 50 period until 1 July would be possible without the UK participating in EP elections. No extension beyond this point would however be possible if the UK had not held EP elections. The European Commission has however said that UK participation in the elections would be required if the UK was still a Member State on 23-26 May even if it planned to leave the EU shortly after. It has warned of legal uncertainty otherwise, given that the UK could choose to revoke Article 50 between the election dates and the 1 July or seek to delay Brexit for a longer period.

The EU has already adopted legislation reallocating some of the UK’s seats in the European Parliament to 14 other Member States, although this only comes into effect if the UK has left the EU by the time the new Parliamentary term starts. The European Commission has stated that there needs to be clarity about the UK’s intentions by mid-April so that the 14 Member States with additional seats can prepare accordingly. If the UK is to take part in the EP elections, returning officers must publish notice of the poll by 12 April.

According to advice from the EP’s legal service “there is no rule hindering” the EP being constituted without all seats having been allocated at the time of the first sitting. However, the leaked EU document on 15 March warned that EU institutions would “cease being able to operate in a secure legal context” if the UK remained in the EU after 1 July without having held EP elections and that this could leave EU acts open to legal challenge. A failure to hold elections in the UK would in any case mean that the UK would be in breach of EU Treaty Articles which provide that EU citizens have the right to be represented in the EP and to vote and stand in EP elections. This could lead to a legal case against the UK at the Court of Justice of the EU (CJEU).

There have been suggestions that the EU could agree a protocol which would allow the UK not to hold EP elections if Article 50 is extended into July. This might involve the UK holding a ‘catch-up’ election at a later date if it decided to remain in the EU (for example if Article 50 was extended in order for another referendum to be held). The UK Advocate General at the CJEU has suggested that the issue could be addressed by extending the mandate of existing UK MEPs or allowing the UK to send national parliamentarians to sit as MEPs for a while. However, the leaked EU document on 15 March said that a Treaty change would be required to allow the UK to extend Article 50 without holding EP elections. This would need to be ratified in all Member States and would therefore not be feasible in a short timeframe.

One other complication is that following the EP elections the process will also begin to appoint the new President of the European Commission and other Commissioners, with the new Commission not taking office until the beginning of November. This could delay matters further if Article 50 negotiations go beyond 1 July.