11 October 2019

A Brexit extension is still possible even if the UK and the EU sign off on a deal next week, says Georgina Wright.

Has Boris Johnson’s meeting with Leo Varadkar increased the prospects of a new agreement? A pathway toward a deal is possible – as a joint statement declared after the prime minister held talks with the Taoiseach – by the end of October. Talks look set to be held over the weekend in Brussels. If they are successful, the UK and EU could agree a new deal by next week’s EU Council. Even then, however, the UK Parliament and the European Parliament would still need to approve the deal. And until that happens, all outcomes remain on the table: a deal, an extension and no deal.

A short extension might be necessary even if the UK and EU reach a deal next week

The first test will be whether UK and EU negotiators can agree a new legal text. If they succeed, the UK government and EU leaders could endorse it at next week’s EU Council.

Then comes the approval stage. If EU leaders are comfortable with the deal, then MEPs are unlikely to object. But the process in Westminster could be more complicated. With time running out, the UK and EU could agree a short delay to ensure this can be achieved; the government may also be more willing to ask for one if it can badge it as a ‘technical extension’.

A Brexit extension is also likely if the UK and EU fail to reach a deal

In September, backbenchers took steps to legislate on an Article 50 extension by passing the EU Withdrawal (No.2) Act – compelling the prime minister to request a delay until 31 January 2020 if Parliament has not approved an exit on 31 October.

However, the prime minister has made clear he is against a further extension – and believes the EU should oppose one too. But the EU is unlikely to do so. First, the EU has said it would be open to a further delay. Second, it does not want to carry the blame for a no-deal fallout. Finally, it is also likely to consider the EU Withdrawal (No.2) Act legally watertight – and a sufficient basis for a UK request for an extension even if the government’s preference would be for it not to happen.

The EU27 have yet to agree the length and conditions of a Brexit extension

The EU27 have yet to decide the terms of this third Brexit extension, but are united on three fronts.

First, they do not want Brexit to dominate the EU agenda – especially as a new Commission is about to start – so will want to make sure this is the last extension.

Second, the UK will need to appoint a commissioner and a second judge to the European Court of Justice if it is to remain a member state past January 2020.

Finally, the EU27 will want to make sure the UK continues to act in good faith in EU discussions – a key concern, for example, is around the EU’s multi-annual financial framework, which will come into play on 1 January 2021. Discussions are ongoing and are likely to be wrapped up over the summer 2020. As a member state, the UK has a veto over the budget, so EU leaders may want the UK to have left by the time the vote takes place.

The terms of the Brexit extension could be agreed later than the October Council

The EU and UK could agree an extension at the October EU Council – but this presupposes that the prime minister is willing to discuss the terms and conditions at next week’s meeting. But the EU Withdrawal (No.2) Act. only requires the Prime Minister to seek an extension after the European Council. These terms would need to be decided at the level of EU leaders.

Andrea Leadsom, the business secretary, has suggested the prime minister would send two letters on 19 October – one requesting a Brexit extension and the other making clear that he disagrees with that request. If this were to happen, the EU27 are likely to suggest a summit later in the week commencing 21 October to give the UK – through Parliament or perhaps the courts – enough time to argue over, and settle, any disputes over the prime minister’s interpretation of the EU Withdrawal (No.2) Act. The last thing the EU wants is to intervene directly in the domestic politics of an outgoing member state.

The tunnel may have been entered – but, for now, this does not mean there has been a narrowing of the possible Brexit outcomes.