Countdown to Brexit: 36 days – A delay to Brexit is ‘technically’ possible – but it’s complex and may not be granted - even if the UK did request it

The changing political landscape in Parliament this week has added weight to an argument to delay Brexit by extending Article 50 in order to gain time to reconsider the UK’s options. 

Under Article 50 of the Treaty on European Union, the date of exit from the EU can be delayed – but only if the EU27 remaining Member States agree unanimously to an extension.

The Prime Minister has stated her opposition to extending Article 50.

The Leader of the Opposition has said that an Article 50 extension is now “inevitable under any scenario”.  When Brexit is next debated by the House of Commons - on 27 February - Labour will support an amendment, tabled by Yvette Cooper MP, to secure Parliamentary time to debate a Bill providing for “a vote to seek an extension of Article 50 in the event that the Government has not secured Commons’ approval for a Withdrawal Agreement by 13 March”.

If this amendment is approved and the subsequent vote in Parliament was in favour of extending Article 50, there would be just 14 days to go until the default ‘no-deal’ Brexit was triggered.  EU leaders have - thus far - indicated they would only be willing to agree an extension for a time limited period - and only if this is for a specific stated purpose.

Scenarios in which a request for Article 50 to be extended could be made:

  • 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 the ‘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.

  • extend 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 the latter scenario, 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 will take considerably longer – at least 22 or 28 weeks, depending on the complexity of the question.  This takes us to October - even if Parliament took a decision in March to hold one.

An extension might 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 still mean that the UK would be in breach of EU treaty articles which give EU citizens 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 Court of Justice of the EU - but by the time the case reached 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 elections is scheduled for 18 April 2019.

Their original intention was to wait until the House of Commons had approved the Agreement before holding the European Parliament vote. However, there is now a discussion on possibility of holding their vote irrespective of progress in the UK.

Should Article 50 be extended before it has been approved by the European Parliament – that is, by 18 April - EU rules allow for the outgoing MEPs to recalled until the newly elected Parliament sits for the first time on 2 July.  The European Parliament vote will be by a simple majority of Members present - and the rules require one-third of MEPs to be present in order to form a quorum.

The Political Declaration does not need to be approved by the European Parliament.  If an extension of Article 50 resulted in a change to the Declaration but not the Withdrawal Agreement - and the Agreement had already been ratified by MEPs – there would be no need for a recall.

There is one further complication should Brexit is 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.

Background: Parliament request for a delay to Brexit

On 13 February 2019, Yvette Cooper presented a Private Member’s Bill - with cross-party backbench support.  Labelled the “European Union (Withdrawal) (No. 4) Bill” - it provides for MPs to take control of the process of ‘extending’ Article 50.

Cooper’s Bill is intended to mitigate the risk of the UK leaving “without a deal” at 23:00 GMT on the 29 March 2019.  It gives the Government until 13 March to secure an “approval resolution” - a vote to accept the deal - from the House of Commons.  If the Government does not manage this, MPs will have a greater say over what the Prime Minister does next.

The Government would be allowed to choose between one of two courses of action. 

Under “track one” the Prime Minister can first ask the Commons to approve leaving the EU without a deal.  If the Commons agrees, the legal default to Article 50 cuts in – and the UK leaves the EU in a no-deal Brexit on 29 March 2019.

If the Commons rejects or amends that motion - or the Prime Minister decides against seeking approval for “no deal” - move on to “track two”.  The Prime Minister must bring forward a proposal to the Commons for extending Article 50.  The motion must say how long an extension the Prime Minister wants to ask for - and ask the Commons to “approve” her extension request plan.

MPs would have the opportunity to amend the date in the Prime Minister’s motion.  If any resolution were to be adopted by the Commons, it would legally compel the Prime Minister to ask the European Council for an extension to the date specified by MPs.

Nothing in this Bill would prevent the Prime Minister from seeking an Article 50 extension even if MPs did not demand her to do so.  If the Government secured an approval motion for its ‘deal’ at any time on or after 13 March but before 29 March 2019, the Bill - any instruction given by Parliament under it - would cease to have effect.  This would return full legal discretion to the Prime Minister as to whether and when to seek an extension – for example, to provide more time to: pass the Withdrawal Agreement Bill; complete the passage of necessary domestic legislation; and to ratify the treaty.

It is possible that the European Council might reject a request to extend Article 50 – or they may - following discussions with the UK Government – propose an alternative, mutually agreeable, date.  If this happens, the Cooper Bill expects the Prime Minister to come back to the Commons to seek approval for the proposed extension.

As a ‘Presentation Private Member’s Bill’, this legislation would not normally be allocated time for debate in the Commons.  However, Cooper has indicated that - if and when the Prime Minister comes back with another “next steps” debate on 27 February - she and others will use that debate to try to secure time for her Bill.

On 29 January, Cooper attempted – unsuccessfully - to do something similar for the earlier version of this Bill.  She moved an amendment to the Government’s “neutral motion” - which would have given the Bill precedence over Government Business for one sitting day.  That proposal was defeated by 321 votes to 298.

John ShuttleworthComment