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COMMENTARY

Designing the next extension – Conditional and time-limited






Brexit / COMMENTARY
Fabian Zuleeg

Date: 05/04/2019

Next week, EU leaders will, most likely, again have to deal with a request for an extension of the Article 50 period by the UK Government. It is highly unlikely that the UK will be able to fulfil the conditions for a technical extension up to the European Parliament (EP) elections; for that, the UK Parliament would have had to pass the Withdrawal Agreement. But the UK will not be ready to face a no deal outcome, so a request for an extension is almost a foregone conclusion.

Whether Theresa May makes this request of her own free will or whether she is compelled by Westminster to do so, with strings attached, it will be up to EU leaders to decide whether to grant a longer extension and under which conditions. But what is in the EU27s best interest?

A credible plan?

This depends on whether the EU27 believe that the UK will be able to deliver a decision in whatever additional time might be granted. There is a strong possibility that the prime minister will fail to present a credible plan on how to achieve this by early next week. May will rely on further attempts at future meaningful votes to push the Withdrawal Agreement through, but there is little indication on where a majority could come from. If that is the case, the EU27 could follow through on their decision when they granted the current extension, meaning that no further extension will be available, which will most likely lead to no deal. This is not unthinkable given that any further extension will require unanimity among the EU27. However, it is also unlikely, as it might be seen as the EU pushing the UK over the cliff edge; EU leaders will try to avoid being blamed for a chaotic Brexit, as well as showing disunity in their decision-making.

The EU27 will come under mounting pressure to grant an extension if Prime Minister May delivers a plan, based on an agreement with the Labour leader Jeremy Corbyn. It would be hard to deny the UK more time if there was a cross-party agreement in place. But whatever promises are made, the House of Commons and even the government might decide not to play along, now, when making a decision, or further into the extension, for example when implementing legislation or when there is a need to make preparations for the UK to take part in the EP elections.

A long extension without a decision?

No extension is thus unlikely. But there are strong reasons why a long extension beyond the EP elections without a UK decision would not be in the Union’s best interest. Politically, given that some countries lean towards no further extension, a unifying position is more likely to be found on a short extension. A long extension also carries (potential) political costs: the UK would have to take part in EP elections and would be a full member state, with all the rights and obligations that that entails until the end of the extension. This could potentially create problems for the EU's decision-making process.

A long extension without justification could also lead to a loss of credibility for the EU27. Many would argue that the EU will never follow through on the no deal threat. The lack of pressure coming from the imminent approach to the cliff edge would also make a resolution less, rather than more likely. So far, the House of Commons has only started to move when the threat of no deal is high and immediate.

A justified long extension

However, there are circumstances under which the EU27 could be willing to grant a long extension, and those are: if the UK takes a decision that requires time for implementation, namely a second referendum, with remain on the ballot, or a General Election. Although each will take different amounts of time to organise, both will make it legally necessary for the UK to take part in the EP elections. While it is far from clear that a second referendum or elections would deliver a decisive resolution, it is hard to believe that the EU27 would not allow for a political process that could, in the end, lead to the UK deciding not to leave the Union. However, there is currently insufficient backing for either of these options in Westminster, making it unlikely that the EU would need to make such provisions. The EU should only consider granting an extension after the UK has made such a decision, not a priori in the hope that the UK will find such a resolution.

All that remains

Unless the UK makes either of these choices or takes the decision now not to leave the Union by revoking the Article 50 notification unequivocally and unconditionally, the EU27 are facing a dilemma. If no deal or a long extension are to be avoided, how can a short extension be designed to maximise the chance of reaching a resolution, while still leaving the door open for the UK to reconsider its choice to leave?

Unless the UK goes down the route of a General Election, second referendum or revocation, from an EU perspective, the objective is to get the Withdrawal Agreement signed off to guarantee an orderly withdrawal. While it would be desirable to have a long-term direction embodied in the Political Declaration, by now the political instability in the UK implies that the EU should not insist on it in its current form and might even disregard it completely if this helps the process in the UK to come to a conclusion. 

Designing the extension

From the EU27’s perspective, all of this has several implications for the design of any extension. Any extension needs to be based on what is delivered, not on what is promised or expected in the future. In the absence of a substantive decision (Withdrawal Agreement, revoke, People’s Vote, or General Election), this implies a short extension that cannot be extended beyond the EP elections.

If the UK decides to go with the Withdrawal Agreement until then, but with insufficient time to implement the decision, a technical extension beyond the European elections should be possible, subject to successful ratification. However, this raises the possibility of the UK revoking Article 50 in that period. , not having taken part in the EP elections, potentially creating problems for EU decision-making. To avoid this, a legal commitment that excludes the possibility of the UK revoking should be concluded in this scenario.

The EU27 should make it clear that the EP elections are the final date by which the UK has to have made a substantive decision, whatever that decision might be. Unless this happens, the EU27 should make it clear that no further extension will be available, defaulting to no deal. They could reinforce this by enshrining in the summit conclusions that no further extension summit will take place unless the UK has made a decision.

However, even such a short extension needs to be conditional. The UK would still have to prepare for EP elections, given that the possibility of the UK having to participate would remain on the table. This conditionality would have to be maintained even in case of a decision that would require a long extension. Without this, the UK could, for example, otherwise be tempted to not hold EP elections in the run-up to a second referendum or a General Election.

Verification would also be required that any commitments the UK undertakes would be fulfilled, on EP elections or, for example, the necessary implementing legislation following a positive meaningful vote for the Withdrawal Agreement. This could be achieved by requiring the renewal of extension in short intervals, subject to verified progress in the UK. In essence, this would imply that the UK would default to no deal the moment the UK government does not fulfil the commitments made. This would not be the EU27 pushing the UK over the cliff edge, but it would rather be the UK choosing no deal by not implementing its commitments.

A staggered and conditional extension

In summary, in the absence of a substantive decision, only a short extension up to the EP elections should be granted, staggered and conditional on the UK implementing its commitments with regard to EP election preparations. The European elections would be a hard cliff edge by which point a decision has to be taken. Otherwise, the UK would default to no deal. Only a decision before this point to hold a General Election or a second referendum would justify a long extension with EP election participation, while a decision to implement the Withdrawal Agreement, with or without a (new?) Political Declaration, could be accommodated in this short extension.

Given the instability in the UK, the EU27 must (once again) take control of the extension process to ensure the best chance for a positive resolution. But no deal must remain the effective default, to ensure that the pressure on the UK political system to make a decision is maintained, but also to safeguard the Union from the political fallout of an increasingly chaotic Brexit process. A long extension without a decision on the way forward in the UK would not be in the EU27’s best interest.

 

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