Though Theresa May’s government has remained tight-lipped on the prospect of an extension to Article 50, insisting that the current timetable will remain in place, there are now widespread concerns that May’s Brexit deal will not be finalised on time.
According to the Brexit timetable, Article 50 of the Lisbon Treaty will expire two years to the day that it was triggered by Theresa May on 29 March 2017.
On Wednesday, Keir Starmer, Labour’s Shadow Brexit secretary, said that an extension of Article 50 “may well be inevitable, given the position that we are in,” but added that an extension can only be requested, as the remaining 27 Member States have to be in agreement.
However, Starmer questioned the appetite of the EU to show flexibility, adding, “I genuinely think that the way the government has gone about the negotiations has undermined a lot of the good will [from the EU side] that otherwise would have been there.”
UK ECR group MEP Charles Tannock said that if the UK requests a short extension of 4-6 weeks for the purposes of democratic ratification of the Brexit process, which could either be a general election or a second referendum, the EU may grant an extension to Article 50.
A longer extension, however, would push the UK into murky waters.
“The British government [may request] to have a very short extension of 4 to 6 weeks purely to tidy up a no-deal scenario if that emerges after the meaningful vote on 15 January, in terms of emergency bilateral agreements to ensure supplies of food, continuity of transportation and personal travel, for example,” Tannock said.
“The EU will only grant an Article 50 extension for the purposes of democratic ratification of the Brexit process, which could either be a general election or a second referendum” Charles Tannock MEP
“If there is a longer extension then of course the United Kingdom is in unchartered legal territory. The UCL constitutional unit has suggested a minimum of 22 weeks to enact the legislation, clear the Electoral Commission requirements on the wording of the referendum question and have an adequate campaign.”
UK INVOLVEMENT IN EU ELECTIONS?
An extension of Article 50 until the end of June could have further ramifications in that the UK could be obliged to hold European Parliamentary elections, scheduled to take place in late May.
“Either of these scenarios would probably take the United Kingdom beyond the 23-26 May date for the European elections and although in principle the United Kingdom would be obliged as a Member State to hold a European Parliamentary election on that date, there is a school of thought that this could be delayed just for the United Kingdom provided that UK MEPs were able to take their seats in time for the first sitting of the new European Parliament on 2 July 2019,” Tannock said.
“Under this scenario then it would require an extension of Article 50 until 30 June 2019, which would allow sufficient time for a General Election or a so-called 'People's Vote', and in the event that Remain were to prevail in the latter, the European elections could be held towards the end of June in time for the newly-convened European Parliament in July,” he added.
Tannock said that as this was only a legal opinion, it may require an urgent clarification by the European Court of Justice, which gave an accelerated opinion on the revocation of Article 50 on 10 December.
“The Wightman case made it clear that the United Kingdom always has the option right up until 28 March to unilaterally revoke Article 50, provided it is in good faith with a firm intention to Remain and not merely to buy time for further negotiations to leave,” Tannock said.
UK Socialist MEP and constitutional expert Richard Corbett said that if the UK is still an EU Member State at the time of the European elections in May, there is a Treaty obligation to take part.
“However, a possible loophole being discussed is if the Article 50 deadline is extended up to a date before the new European Parliament first assembles on 2 July. Then, with the legal situation being that the UK would (until further developments) be scheduled to leave by 1 July, the UK could avoid having to participate in the May elections as it would at that point not be scheduled to have any MEPs,” Corbett said.
“While Labour and the Tories play chicken on the Brexit cliff edge it appears that the rational majority in Parliament is beginning to flex its muscles” Molly Scott Cato MEP
“If it [the UK] then changed its mind about Brexit, it would need a catch-up election. However, that interpretation might be subject to a legal challenge from voters arguing that they have a right to elect their representatives.”
Corbett said that in any case, an extension beyond 1 July would require the UK to participate in the European elections.
“That would not be a legal problem for the EU as the legislation reallocating the UK seats has a clause postponing that reallocation if Brexit hasn’t happened by then. The problem is simply political inconvenience, for both sides.”
UK Greens MEP Molly Scott Cato said that the EU has made it clear that it will look favourably on an application to extend the Article 50 process, but only if it is for further constitutional processes in the UK - a second referendum – “and not merely because we have messed up the negotiations.”
"Our European friends are looking on in horror as the mother of parliaments they have so long respected struggles with the constitutional hand-grenade that Brexit represents.”
“It is also clear that they would wish to see the issue of Brexit resolved one way or the other before the European Elections at the end of May, which is why the deliberate stalling tactics from the Prime Minister are so irresponsible.”
Scott Cato added, “While Labour and the Tories play chicken on the Brexit cliff edge it appears that the rational majority in Parliament is beginning to flex its muscles. If the Prime Minister’s deal does not find a majority we can only hope that Parliament will realise that the fastest, cleanest and most democratic way out of the Brexit impasse is to seek confirmation about the current will of the people via a People’s Vote.”