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The case against a long extension of Article 50

Article 50 / COMMENTARY
Larissa Brunner

Date: 21/03/2019

It is still possible the UK will ask for a lengthy delay, but the EU should prepare to say no

A little over one week before the scheduled date of the UK’s departure from the EU, the entire Brexit process is up in the air. UK Prime Minister Theresa May has requested an extension of Article 50 until 30 June – two days before the start of the new European Parliament’s (EP) term –to bring her Brexit deal back to Parliament for a third time. In his reply, European Council President Donald Tusk said he would only support a short extension, without specifying the length, if Parliament passes the Withdrawal Agreement.

This caveat makes sense from the EU’s perspective. If the Council granted an extension until 30 June without knowing whether Westminster would pass May’s Brexit deal, the UK government might change its mind and revoke Article 50 at a point when it is too late to take part in the EP elections. Consequently, the UK would remain a member state but not be represented in the EP. The EP would then be illegally constituted. Another risk is that the European Court of Justice (ECJ) rules that the UK has to take part in the EP elections if it is still a member state when they take place, regardless of whether Parliament has already approved the Withdrawal Agreement.

Increasing the pressure

Tusk’s comments mean that the UK Parliament will be under intense pressure to pass May’s deal next week. House of Commons Speaker John Bercow’s ruling on 18 March that May cannot present her Brexit deal to Parliament again (it has already been rejected on 15 January and 12 March) unless it is fundamentally changed is making matters even more complicated.

One way May could get around Bercow’s ruling would be to opt for a softer form of Brexit. If she managed to build a cross-party consensus around a Norway-style option, Bercow would be unable to stand in the way. However, May is unlikely to choose this route, given the time pressure and the risk that a softer Brexit would split her party. Her other options include starting a new parliamentary session or, if a majority of MPs supports the current deal, get Parliament to overrule Bercow.

It is unclear what is going to happen if the Withdrawal Agreement is not passed by 29 March. Neither Tusk nor May explicitly ruled out a longer extension. May said that she, “as prime minister”, is not willing to delay Brexit beyond 30 June, suggesting she might step down in case of a longer extension. Moreover, Tusk tweeted on 14 March that he would “appeal to the EU27 to be open to a long extension if the UK finds it necessary to rethink its Brexit strategy and build consensus around it”.

If the only alternative is a no-deal exit on 29 March, May might request a lengthy delay to give a new leader time to hold a second referendum or try to renegotiate the deal. A snap general election is also possible but unlikely, as neither the Conservatives, the Democratic Unionist Party (DUP) nor the newly formed Independent Group have much to gain.

A long extension?

From the EU’s perspective, there are two arguments in favour of a long extension. First, one could argue that granting a long extension that leaves open the possibility of a second referendum and a decision to remain in the EU is better than accepting the no-deal scenario on 29 March.

However, there is no reason to believe why easing the time pressure would help Parliament make a decision on Brexit – quite the opposite. Despite the prospect of leaving the EU on 29 March, with or without a Withdrawal Agreement, MPs voted down May’s Brexit deal on 12 March 391 to 242. The margin was much smaller than when Parliament voted on the deal for the first time in January (149 compared to 230), which suggests that time pressure is crucial in convincing MPs to make a decision. If MPs believe that no deal has been ruled out and that they have a further, say, nine months or even a year to debate Brexit without the fear of an imminent cliff edge, any agreement will probably move even further out of reach. In other words, if MPs cannot agree on the way forward under intense time pressure next week, they probably never will. This makes a lengthy extension period redundant.

If the fear of no deal is effective it will force a decision, and if not, a decision will remain elusive even at the end of a long extension.

This leads to the second possible argument for a long extension: an EU preference for a second referendum over the Withdrawal Agreement. This would be a risky bet, with a highly uncertain reward and many downsides. Even if a long extension is granted, it is not a foregone conclusion that a second referendum will take place. Parliament could have supported a motion on 14 March that would have instructed the government to ask for a long extension to hold a second referendum, yet the motion was defeated by 334 to 85 votes.

Moreover, it is not guaranteed that Remain would win a second referendum. Even if it did, it would hardly settle the Brexit debate. Leave voters would feel cheated and, if turnout was low or the result close, might contest the legitimacy of the vote. Future general elections or party leadership contests could be turned into quasi-referenda on the UK’s relationship with the EU. All of this would imply additional trouble for the EU. Turning back the clock and undoing the past three years is, unfortunately, not possible.

A risky bet

Granting a long extension would also have several downsides for the EU. Uncertainty would be prolonged, which would have negative consequences for businesses; the EU would have to continue spending time and resources on Brexit.

The UK would have to take part in the EP elections, which would be a logistical and political challenge. UK participation could also lead to a further increase of Eurosceptic MEPs, while the country’s presence in the EU’s institutions would give London the opportunity to block EU decisions whenever unanimity is required. The EU would be powerless to prevent this. Though it could seek a gentleman’s agreement with the UK government, this would be unenforceable and, in any case, fail to constitute a credible commitment as it would not bind UK MEPs. Moreover, both the EU and May would lose leverage as the time pressure on Parliament eases. Granting a long extension would also send an undesirable signal to Brexiteers, namely that the EU is desperate to avoid a no-deal outcome. This would have serious consequences for the EU’s credibility in the trade negotiations and make it much harder for the EU to secure any agreement.

Accepting these drawbacks for the slim chance of a second referendum would be a high price to pay for the EU. Both parties face a difficult choice if May’s deal does not pass next week. The EU will have to choose between no deal on 29 March and a long extension, knowing that the latter will not eliminate the possibility of a no-deal scenario later. But this pales in comparison to May’s choice: avert no deal, but sacrifice party unity and your own career and red lines, or let your country commit economic and political suicide.

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