There are 17 days left until Brexit, but that could soon change. MPs are expected to vote against a no deal Brexit tonight and in favour of extending Article 50 tomorrow. If that happens, Theresa May will ask the EU for more time to prepare for the UK’s withdrawal. But how much more? And, given it has to be unanimously approved by EU member states, will that request even be granted?
One clear obstacle to extending Article 50 is the fact that European Parliament elections will take place across the bloc on 23 May.
Under the shortest delay the government is likely to seek, Brexit day would be moved to 23 May. This would avoid the legally fraught issue of whether the UK has to elect a new slate of MEPs if it carries on being an EU member past that date.
A two-month delay is the European Commission’s preferred option. Addressing the issue publicly for the first time on Monday, Jean-Claude Juncker wrote in a letter to Donald Tusk that Brexit “should be complete before the European elections that will take place between 23-26 May this year”.
Even though they’re elected on 23 May, the new slate of MEPs elected this year won’t take their seats until the first European Parliament session on 1 July.
This makes it conceivable that the UK will seek an extension until the end of June. EU law would still require the UK to elect new MEPs if it remained a member past 23 May, but negotiators might find some way to sidestep this issue. It could theoretically afford the UK and EU with a little more time to use as they see fit.
10 months or longer
The UK and EU might decide to go for a longer extension until the end of the year. The UK could then either elect new MEPs in May and withdraw them when it leaves the EU, or negotiators would have to conjure up some legal fudge.
Staging European Parliament elections in the UK this year would be at best farcical and, at worst, politically disastrous. Voters would wonder why they’re being asked to elect MEPs three years after they voted to leave the EU. That’s why both the major parties are keen to avoid holding European elections.
Ideas for how to do that have been batted about. In 2016, Labour MEP Richard Corbett suggested that the UK parliament could appoint MPs and peers to serve as MEPs in the period between 23 May and Brexit day. This resembles the way in which Bulgaria and Romania, which joined the EU in 2007, sent some of their MPs to be temporary representatives in the European Parliament, before they could take part in their first direct elections in 2009.
If the UK opts to elect MEPs this year or agrees with the EU to draw up a solution of this kind, we could be heading for a longer extension until the end of 2019. Some in the EU prefer this option because it’s likelier that, in the intervening period, something would materially change—there would be a snap election, a second referendum, or the UK position would shift in some other way.
No delay at all
The UK has the power unilaterally to revoke Article 50 and put an end to Brexit. But to extend it, it needs the unanimous approval of the 27 EU member states, and it’s far from certain to get it. EU officials have made it clear that they will not approve an extension without good reason, and have hardened their position in the past few days.
After May’s deal was voted down for the second time last night, Donald Tusk set out an EU red line: the UK must have a “credible justification” for seeking an extension. As far as the EU is concerned, carrying on the current tortured negotiation process does not meet that standard.
A “credible justification” could be some kind of electoral event, such as a second referendum or a general election. Or it could simply be a technical extension to get essential Brexit legislation through parliament. That would certainly need to happen even if May got her deal through parliament on a third attempt, as there isn’t time to get through the laws that would prevent no deal from accidentally happening after 29 March.
Since an Article 50 extension requires unanimous EU approval, politically fraught issues that were settled during the negotiations—such as Gibraltar—could now be dredged up once again. This alone could drag the negotiations past 29 March and make no deal Brexit an inevitability.