After Parliament voted against Theresa May’s Brexit deal for the second time, against no-deal, and in favour of extending Article 50, the government will now formally request an extension of Article 50. The 27 EU leaders will consider this request at the European Council summit later this week, and must decide unanimously whether to approve it.
The consistent message from EU leaders is that extension is an option, but its approval is not guaranteed. It will only be forthcoming if the UK offers a valid justification for such a request. But what exactly constitutes a valid justification? Thus far, the messaging has been mixed, with some EU leaders stating they want to see a workable majority in Parliament for a new plan, and others not insisting on such criteria.
Although the EU is under no obligation to grant the UK an extension, there are strong legal and political reasons to believe they would. If the UK asked for a lengthy extension to hold a referendum or general election, a short extension to get an approved deal ratified (which looks unlikely after the Speaker’s dramatic intervention), or a lengthy extension to buy time to pursue a softer version of Brexit which Parliament indicatively supports, the EU would almost certainly approve. These are all concrete plans which could result in highly favourable outcomes for the EU.
Even if the UK asked for an extension to buy time for MPs to figure out a new way forward ― the most plausible scenario given recent events ― the EU would probably approve. EU leaders would be unhappy with the vagueness of such a request, and it would be vociferously debated. However, with the prospect of a chaotic no-deal Brexit looming large, EU leaders are unlikely to refuse the UK’s request to delay Brexit.
This is because the necessity of avoiding no-deal on 29 March outweighs the need to have precise clarity on what the UK wants to do. EU leaders will act to avoid no-deal in the short-term, even if it was not guaranteed that it wouldn’t merely be deferred to a later date.
Furthermore, a no-deal Brexit offends all that EU constitutional law holds dear, in terms of rights protection, the rule of law, and the duty of cooperation. Indeed, Article 50 imposes a ‘best endeavours obligation’ on the EU to negotiate and reach an agreement, and embodies an exceptionally strong preference for a negotiated, orderly withdrawal. As such, if the UK’s request for extension was reasonable, it would not be cooperative nor in the spirit of the EU’s values to refuse an extension.
Finally, EU leaders have always said that they want the UK to be in a customs union with the EU and to remain closely aligned to the EU’s Single Market. As such, it would be surprising for the EU to deny the UK the chance to achieve this, even if prolonged uncertainty was the cost.
Some argue that EU leaders will be justifiably exasperated with the UK and may seek to cut their losses, accept no-deal, and move on. Also, the prolongation of uncertainty for a few more months, and the potential deferral of no-deal, may be more economically damaging than no-deal on 29 March. Finally, the idea of UK participation in the May European Parliament elections is considered farcical, as is the prospect of the UK not participating but then remaining a Member State beyond July.
However, at high noon, these arguments are unlikely to trump the desire to avoid the catastrophe of a no-deal Brexit. EU leaders will take a pragmatic approach, and will want to bear no responsibility for no-deal. Despite the need for unanimity, it is unlikely that any Member States will take the diplomatic risk of breaking the EU’s impeccable unity and veto extension, or demand unreasonable conditions.
If the UK asks for more time to figure out a hitherto unknown new way forward, the EU would insist that such an extension must be lengthy, which could require UK participation in the European Parliament elections in May (although this is an ongoing legal debate). This may work in Theresa May’s favour, as she could use it to persuade rebel Brexiteer MPs to back her deal.
There is no legal limit to how long an extension could be (although it must have an end date), or how many times the UK could extend. The EU will probably insist that it is a one-off move, but may be open to a second extension if Parliament subsequently decided to hold a referendum or general election.
For an extension of Article 50 to have domestic legal effect, the exit day of 29 March 2019 in UK law needs to be amended, and Theresa May has said she will do this. Crucially, extension of Article 50 delays Brexit and prolongs the UK’s membership of the EU. Article 50 can be unilaterally revoked at any time until withdrawal, which means that no Brexit remains an option, from a legal perspective.
Predicting what Parliament does next, or where the Brexit process will end up, is a foolish endeavour. However, with the prospect of no-deal looming large, it is highly unlikely that the EU will refuse the UK’s request for extension, despite the tough rhetoric. Brexit on 29 March has never looked less likely.