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Extending Article 50: could Brexit be delayed?

Published Tuesday, February 12, 2019

With six weeks to go before the UK is due to leave the EU and no Withdrawal Agreement as yet approved by the House of Commons, there have been calls for the Government to request an Article 50 extension from the EU to delay Brexit day. Under what scenarios could an Article 50 extension be agreed with the EU? And could this lead to the UK taking part in the European Parliament elections?

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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 unanimously to an extension.  

The Government’s motion 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 was defeated in the House of Commons on 15 January 2019 by 432 votes to 202.

The Prime Minister has subsequently set out her intention to seek further negotiations with the EU on the WA, in order to obtain changes to the most contentious element of the WA, the Northern Ireland/Ireland ‘backstop’, that would be acceptable to a majority in the House of Commons. EU leaders have however stated repeatedly that they are unwilling to re-open renegotiations on the WA, but would consider making changes to the PD.

If the Government is unable to reach agreement with the EU on changes to the WA or PD that command majority support in the House of Commons, then there is a heightened prospect of the UK leaving the EU without a deal, unless the Article 50 period is extended or sufficient MPs change their minds and vote for the existing texts.

Government, Opposition and EU views on Article 50 extension

The Prime Minister has repeatedly stated that she intends to deliver on the 2016 referendum result in taking the UK out of the EU, and that the Government will not revoke Article 50. She has also stated her opposition to extending Article 50.

The House of Commons voted against amendments providing for an Article 50 extension when it debated Brexit next steps on 29 January. During the debate, the Leader of the Opposition Jeremy Corbyn stated that an Article 50 extension is now inevitable “under any scenario” given the legislation that needs to be passed prior to exit day and the preparations required if the UK is to leave without a deal.

Statements from the EU’s chief Brexit negotiator Michel Barnier and from EU Member States have suggested that there is a willingness to agree to an extension of the Article 50 period if the UK requests this, but provided it is for a specific, stated purpose.  There has been speculation that EU leaders would be prepared to extend Article 50 in order to re-open talks if there was a major shift in the UK position. However, statements from EU leaders have indicated that such talks would focus on possible changes to the PD in order to reach agreement on a more specific framework for the future UK-EU relationship that may win majority support in the House of 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 a request for Article 50 could be made

Foreign Secretary Jeremy Hunt has suggested that an extension of Article 50 could be requested if the WA is approved shortly before 29 March, in order to provide for extra Parliamentary time to pass legislation to prepare for Brexit. Legislation to implement the WA must also 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. Only 142 of the 600 statutory instruments required to prepare the statute book for exit day had made their way through Parliament as of 11 February 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. Either scenario would almost certainly require an Article 50 extension.

A longer extension would be required under the scenario advocated by the Liberal Democrats, Scottish National Party and 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). If Parliament took a decision on 14 February in principle to stage a referendum, this would mean a referendum in early June under the Liberal Democrats’ timetable, or mid-July/late August under the Constitution Unit’s timetable. Additional time would then be needed if further negotiations with the EU were needed under Article 50.

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 current plans in the EU and the UK are based on 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. The intention with the EP was originally to wait until the House of Commons approved the WA before holding its own vote. However, the possibility of holding an EP vote on the WA irrespective of progress in the UK is now being discussed. Alternatively, if Article 50 is extended and 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. The EP’s rules of procedure provide that the President of the Parliament can recall the EP following a request of the majority of its Members or at the request of 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

If Article 50 was extended until 1 July 2019, there would be no need for EP elections to take place in the UK.  However, if Article 50 is extended beyond 1 July, then the UK may need to participate in the elections, as the new Parliament sits for the first time on 2 July.

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.  Nevertheless, having already begun preparations for the elections on the basis of an increased number of MEPs, some countries may be reluctant to countenance an Article 50 extension that disrupts these plans. 

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, a failure to hold elections in the UK would still mean that the UK would be in breach of EU Treaty Articles which provide that EU citizens should have the right to be represented in the EP and to vote and stand in EP elections. This could lead to legal proceeding against the UK at the Court of Justice of the EU. But by the time these occurred the UK may have already left the EU.

There have been reports that some EU leaders would be prepared to agree a protocol with the UK absolving it from having to hold EP elections if Article 50 was extended into July. There have also been suggestions that the UK could hold 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 European Commission has however suggested caution over any suggestion that the rights of EU citizens to vote in EP elections could be called into question.

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.

Commons Briefing papers CBP-8496

Authors: Stefano Fella; Graeme Cowie; Neil Johnston

Topics: Central government, Elections, EU institutions, EU law and treaties, Europe, International law, Legislative process, Parliament

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