With a withdrawal agreement still not approved by the House of Commons and the legislation to prepare for Brexit not yet in place, there have been increasing calls to delay ‘exit day’.
Under Article 50 of the Treaty on European Union, the date of exit from the EU can be delayed if the EU27 Member States agree unanimously to an extension. EU leaders have so far indicated they would be willing to agree an extension for a time limited period and if this is for a specific stated purpose.
The Prime Minister has stated her opposition to extending Article 50. However, the Leader of the Opposition has said an Article 50 extension is now inevitable “under any scenario”. The Labour frontbench has indicated that when the Government’s Brexit policy is next debated by the House of Commons on 27 February, it will support Yvette Cooper’s amendment to secure parliamentary time to debate a Bill providing for a vote on seeking an extension of Article 50, if the Government has not secured Commons’ approval for an agreement by 13 March.
This Insight will examine how any potential extension to Article 50 could be requested and how it might affect the European Parliament elections to be held in May.
Scenarios in which a request for Article 50 could be made
Most of the mooted scenarios for extending Article 50 could require a delay of one to three months. For example, an extension could be requested in order to pass the legislation that will be required to implement the Withdrawal Agreement should the agreement be approved by the Commons before 29 March (as has been suggested by the Foreign Secretary). An extension could also be requested in order to pass other Brexit-related legislation, including secondary legislation required to prepare the statute book for Brexit (as well as other ‘no deal’ preparations), should the UK leave with no deal on 29 March. How the EU would react to such a request is unclear.
There have been suggestions that the EU would be willing to extend Article 50 if there is a shift in the UK position. This might mean via 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.
How long would a general election or referendum take?
A general election would take up at least five weeks if based on a Government-engineered vote or seven weeks if it followed a successful vote of no confidence in the Government. Organising another referendum might take considerably longer. The UCL Constitution Unit has estimated that a referendum would take 22 or 28 weeks (depending on the question), meaning a referendum in August or September if Parliament took a decision to hold one at the end of February.
Would an extension mean the UK takes part in the European Parliament elections?
One complication of extending Article 50 is that European Parliament (EP) elections are due to take place on 23-26 May 2019.
The newly elected EP will sit for the first time on 2 July. This means if Article 50 is extended until 1 July 2019 at the latest, there would be no need for EP elections to take place in the UK. However, if Article 50 is extended beyond this point, the UK may need to participate.
The EU has already adopted legislation reallocating some of the UK’s seats in the European Parliament to other Member States, although this only comes into effect if the UK has left the EU by 2 July. Nevertheless, having already begun preparations for the elections on the basis of an increased number of MEPs, some Member States may be reluctant to approve an Article 50 extension that disrupts these plans.
According to advice from the EP’s legal service, “there is no rule hindering” the EP being constituted without all seats having been allocated at the time of the first sitting. However, a 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 EP 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.
There have been differing reports as to whether the EU would accept the UK not holding EP elections, with some reports indicating the EU would insist the UK takes part if its EU membership continued into July. Others have suggested that some EU leaders would be prepared to agree a protocol absolving the UK from having to hold EP elections. Other options mentioned include allowing the UK to hold a ‘catch-up’ election at a later date if it decided to remain in the EU (for example if Article 50 was extended in order for another referendum to be held) or allowing the House of Commons to send MPs to the EP to cover the role of MEPs for a temporary period.
The European Commission has cautioned against any suggestion that the rights of EU citizens to vote in EP elections could be called into question.
Approving the Withdrawal Agreement
The final sitting of the outgoing EP before the elections is scheduled for 18 April 2019. This creates a further complication given that the EP’s consent is required for the Withdrawal Agreement. The original intention within the EP was to wait until the House of Commons approved the agreement before holding its own vote. However, the possibility of holding an EP vote irrespective of progress in the UK is now being mooted.
Alternatively, if Article 50 is extended and the Withdrawal Agreement has not been approved by the EP by 18 April, Parliament rules allow for the outgoing EP to recalled up until the newly elected EP sits for the first time on 2 July. The EP vote will be by a simple majority of Members present and EP rules require a third of MEPs to be present for a quorum.
The Political Declaration does not need to be approved by the EP. If an extension of Article 50 therefore resulted in a change to the Declaration but not the Withdrawal Agreement (and the Agreement had already been ratified by the EP) then the EP would not need to be recalled to give its approval.
One other complication is that following the EP elections the process will also begin to appoint the new President of the European Commission and other Commissioners, with the new Commission not taking office until the beginning of November. This could complicate discussions with the EU further if Brexit is delayed beyond 1 July.
Extending Article 50: could Brexit be delayed? House of Commons Library.
Stefano Fella is a senior researcher in international affairs and defence at the House of Commons Library, specialising in Brexit.