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1. Following two successive votes rejecting the draft withdrawal agreement (DWA) (432-202 against and 391-242 against) and this evening’s vote (321-278) to reject any no deal Brexit, here is a personal reflection/contribution on possible extensions of time under Article 50 TEU.
2. If the existing DWA ever ends up being approved, it is near-certain that the UK will have to seek a short (2-3 month) extension, in order to put in place the necessary measures to implement that agreement.
3. Since there would be obvious mutual interest in granting such an extension, it is unlikely that obtaining it in that context would present major difficulty.
4. On a different view, rather than putting the existing DWA to a third vote, Parliament should now pause, take stock and work out which of the other possible paths it wishes politically to explore.
5. However, unless an extension under Article 50 TEU is both requested and granted, the UK will (repeat, will) leave the EU by operation of EU law at midnight CET on 29 March 2019.
6. Changing the leaving date in UK domestic legislation will NOT be sufficient to stop the ‘Brexit clock’ ticking down to zero.
7. EU Council President Tusk has set out the EU position: ‘Should there be a UK reasoned request for an extension, the EU-27 will consider it and decide by unanimity’; however, ‘the EU-27 will expect a credible justification for a possible extension and its duration'.
8. The Prime Minister accepted as much in Parliament on Tuesday evening: ‘The European Union will want to know what use we mean to make of such an extension, and this House will have to answer that question’.
9. The EU-27 have also indicated, equally clearly, that they see little to no mileage in the UK Government making further attempts to ‘obtain concessions from Brussels’ in respect of the existing DWA.
10. Indeed, given the UK’s red lines and the EU’s commitment to preserving the essential structures of the European project, the existing DWA (painstakingly negotiated over many months) is thought by many to represent a reasonable, fair, best-efforts, overall deal.
11. For that reason, it does not seem very plausible that a request for a short (2-3 month) extension under Article 50 TEU in order to make further attempts to tweak the existing DWA will attract the necessary unanimity from the EU-27 to be approved.
12. Thus far, the EU has shown consistency and solidarity in sticking to its historical principles and priorities. Is it really about to change course radically and agree to a ‘revised’ DWA that would, in its eyes, involve dismantling some of what has been laboriously achieved?
13. Were the UK’s red lines to move, what could be put into a new DWA would be different from what has perforce gone into the existing DWA. Some of the currently intractable problems – notably, the Northern Ireland border issue – would be far easier to address.
14. That would, however, require a significant change of course, in London rather than in Brussels.
15. Building consensus in Westminster and then, once the new objectives are agreed, negotiating on that (new) basis with the EU-27 – with or without also holding a public second vote to endorse one of the available option(s) – would necessarily take a significant time.
16. However, a request for a significantly longer extension based on a clear commitment to work through that programme would be underpinned by a ‘plausible justification’ and thus be intrinsically more likely to achieve command the necessary unanimous support from the EU-27.
17. It is fundamental to remember that, in such a scenario, the UK would still in principle remain committed to Brexit. The departure date would merely have been postponed by mutual consent.
18. The notice given by the Prime Minister on 29 March 2017 under Article 50 TEU would NOT have been revoked. The default value would still therefore be that the UK left the EU at the end of that (extended) period.
19. If (but only if) the UK decided during that extended period that it did not, after all, wish to leave, it could then exercise its sovereign right unilaterally to revoke its Article 50 TEU notice (see C-621/18 Wightman) and would then remain a Member State on current terms.
20. Much has been made of the forthcoming European Parliament (EP) elections in May 2019. Specifically, it has been suggested that these represent an ‘insuperable’ obstacle to any extension under Article 50 TEU lasting longer than 2-3 months.
21. This is an oversimplified and ultimately fallacious presentation of the situation.
22. It is perfectly true that, IF nothing is done to alter the existing rules, the UK would be expected to hold elections to the EP if it is still a Member State when those elections take place in May 2019.
23. It is equally true that, were there to be an extension to the Article 50 period, it would (clearly) be inappropriate for the UK to hold EP elections in May 2019 in order to select new MEPs to sit in the new EP for, at most, a matter of months before the UK left the EU.
24. Holding new elections is not, however, the only way of dealing with the situation.
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