Today Emily Thornberry, standing in for Jeremy Corbyn at PMQs, floated the idea of extending article 50. Here’s how it can be done, writes Richard Corbett
As the article 50 deadline looms and parliament remains gridlocked, there is a growing consensus that Britain will need to request an extension of the article 50 deadline beyond 29 March, to avoid leaving in an abrupt, chaotic and economically damaging no deal scenario for which the British government, citizens and businesses are woefully underprepared.
The text of article 50 of the treaty of the European Union explicitly allows for an extension, if there is unanimous agreement in the European council – the ‘summit’ meeting of the prime ministers or presidents of the member states. It does not stipulate any further conditions.
The final European council meeting before the current 29 March deadline, is on 21 March. Normal practice for such meetings would see a proposed decision circulated two weeks prior, which means the government would need to give notification by around 7 March, though in extremis a decision can be taken without this, or even after 21 March by written procedure or extraordinary meeting, though those scenarios would court more controversy.
The EU27 has hinted that it would be amenable to an extension if there was a need to go through democratic procedures. This has been taken to mean if the United Kingdom was to hold a second referendum or a general election.
It would also be amenable to a ‘technical’ extension, likely to be necessary even if a withdrawal agreement was agreed by the UK parliament, given that at least six major bills and hundreds of statutory instruments would need to be in place by the withdrawal date. There is inadequate parliamentary time left for this.
It is, however, not keen to extend the deadline in order to reopen the negotiations of the withdrawal agreement signed off in December. The EU27 would need to be convinced that there is a clear majority in the House of Commons behind an alternative deal – and that that deal is workable and acceptable.
One of the concerns about an extension are the upcoming European parliament elections, taking place on 23 to 25 May, for the next five year mandate, which begins on 2 July 2019.
Would we have to hold elections in May, adding to the already chaotic domestic political situation – and possibly interfering in a referendum campaign? Not necessarily. If the article 50 deadline is extended for just over three months to 1 July, then the legal situation would be that the UK would, until possible further developments, still be scheduled to leave. This would be before the new European parliament takes office on 2 July, so it would not need to participate in the May elections as it would, at that point, not be scheduled to have any members of the European parliament.
If Brexit were confirmed during that extended period, then the withdrawal agreement could be passed by the outgoing European parliament, even after the elections – as current MEPs hold their mandate until 1 July, so the outgoing parliament could exceptionally be recalled in June if required. On the other hand, if the UK decided during that extension to remain in the EU, it would need to have catch-up elections as soon as practical.
Some members of parliament are looking at a longer extension: 31 December 2019 has already been proposed and it is likely other later dates may also be discussed.
In that case, the UK would be legally required to participate in the May elections. But it is politically inconvenient for both sides.
For the UK, it could mean an election campaign focussed on Brexit, possibly just before a referendum on Brexit, with the added complication that parties on the same side of the Brexit divide would be competing with each other as much as with the others. And holding elections for an institution we may or may not be leaving might make for some manifestos that will be rapidly out of date. It could be seen as a waste of time and money.
For the EU27, it means the prospect of 73 UK MEPs turning up for just a couple of months, voting on the next president of the commission and then disappearing. They fear a number of MEPs arriving intent on paralysing the work of the parliament, possibly for five years. For countries due to have extra seats redistributed from those previously allocated to the UK, it means uncertainty as to how many they will elect.
A legally watertight way of not holding the elections in Britain in May would be a protocol, added to the treaties, ratified by every national parliament in record time. A tall order to do so between the European council in March and elections in May, but perhaps not impossible.
Could the UK, in violation of the treaties and secondary legislation, simply refrain from organising these elections? Perhaps with a ‘nod and wink’ understanding from the EU? According to an opinion from the European parliament legal service, it would not render the newly elected European parliament invalid. If failure by any country to elect its MEPs were to invalidate the parliament, then any country could choose to paralyse the parliament, and therefore the EU, simply by not organising its elections.
That might be a way forward, but it would be vulnerable to legal challenge from UK voters or aspiring candidates. The courts might order the UK government to hold the elections. If so, then political parties will have to bite the bullet and prepare for an election in May or soon after – though in this scenario, it is likely to interface less immediately with any referendum, which would presumably be later, perhaps in the autumn or even next year.
In short, there are no insurmountable legal difficulties to extending the article 50 deadline beyond the date of the European elections. The problem is simply political inconvenience, for both sides, if European elections have to be held in Britain before the question of Brexit is resolved. Certainly, the 29 March date should not be seen as immutable, despite what Theresa May and many Brexit cheerleaders would like us to believe.
Richard Corbett is the Labour leader in the European parliament
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