The issue of timing has become crucial to Brexit. The UK has wasted time. The new prime minister will be tempted to ask for more. The European Council is highly unlikely to grant another extension to Article 50. No deal is both the legal and political default. There is a high risk that the UK crashes out of the EU on 31 October. However, a deal could still be done based on Mrs May’s Withdrawal Agreement and an improved Political Declaration. But one amendment is needed to buy time: the transition period should be made extendable until the new association agreement enters into force. Such a revision will not breach anyone’s red lines. It will obviate the need for the Irish backstop, reassure business and citizens, and enable an orderly exit.
Extending Article 50
Amid the thicket of Brexit, one of the most difficult issues concerns extending the Article 50 process beyond the allotted two years. Article 50(3) allows the European Council, acting unanimously in agreement with the UK, to extend the period for the negotiation and conclusion of an agreement that sets out the arrangements for Britain’s withdrawal and takes account of the framework for its future relationship with the Union. Initially, the EU insisted that, just as the treaty prescribes, the UK would cease to be a member state two years after it triggered Article 50 – that is, on 29 March 2019. However, when Theresa May failed to get the Withdrawal Agreement ratified by the House of Commons she abruptly faced the choice between crashing out on 29 March without a deal or of applying for an extension to the timetable.
There was much speculation about how opinion at the European Council meeting of 21 March would divide when confronted with Mrs May’s request. In the event, the heads of government rejected her specific proposal (for an extension until 30 June) but agreed to extend until 22 May on the condition that the Commons ratified the agreement during the immediately following week. In the case that the Commons still failed to ratify, the European Council demanded that the UK would, before 12 April, indicate a way forward for its further consideration.
The deadline of 12 April was significant because it was the last date by which the UK could give notice to hold elections to the European Parliament on 23 May. It would have been possible for the European Council, acting under the rubric of Article 50, to grant the UK, as an imminently departing member state, a derogation from holding elections. But in order to protect the legitimacy of the new Parliament (and to bat off litigation) the leaders decided instead to insist that the UK would again have to elect MEPs.
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