19 October 2019

MPs have compelled the government to request a further Brexit delay – but the EU won’t rush to give an answer until it has seen what Parliament does next, argues Georgina Wright. 

The vote in Parliament was supposed to be Boris Johnson’s chance to seal his Brexit deal – instead the government will be sending a letter to Brussels requesting a further delay. An orderly Brexit at the end of the month is still possible, but MPs would need to approve the deal and the Withdrawal Agreement Bill, which would also need to pass in the House of Lords – and possibly next week.

While EU27 ambassadors are expected to meet in Brussels tomorrow morning to discuss terms of an extension, they could wait to see how the next few days pan out before giving a formal response. Currently, there are four options they could consider. 

The EU27 could reject a Brexit extension 

The first option would be for the EU27 to oppose an extension in the hope this focuses minds in Westminster. Faced with the prospect of a no-deal Brexit, MPs could decide to support Johnson’s deal when he brings another vote to the House on Monday and then speed up the process of ratification – even if this means another session in Parliament on Saturday 26 October.

But there is a risk to this strategy: if the process of ratification is not completed by 31 October, the UK could leave the EU on 31 October without a deal – with the EU carrying the blame for that outcome. 

The EU27 could wait and see what Parliament does next 

The EU27 will not want to be blamed for a chaotic fallout. So rather than oppose an extension, they could choose to delay their response. Their meaningful ‘test’ will be to see what happens next week as MPs debate the Withdrawal Agreement Bill. If MPs show they support Johnson’s deal, but want the security of an extension before getting into the detailed legislation, the EU may be willing to grant an extension.  

The EU27 could offer a short legislative extension – possibly for two weeks 

If MPs need more time to debate, scrutinise and amend the Withdrawal Agreement Bill, the EU27 could offer a short legislative extension of two weeks to mid-November. This would be sufficient to pass the bill, but not long enough for this process to drag on. 

But this assumes that the EU27 are confident that ratification can be completed in that time – and that the European Parliament can organise an extraordinary sitting to pass the agreement. While this may put some pressure on MPs in the UK, it still does not remove the prospect of a no-deal exit in mid-November. 

The EU27 could settle for a longer Brexit delay  

The third option would be to offer a longer delay – how long will depend on the purpose of the extension. 

For a general election, the EU27 could offer a delay until the end of the year – or until 31 January 2020 (in line with the Benn Act). But if it becomes clear that the UK wants to hold a second referendum – MPs could try and attach this condition to any Brexit legislation – the EU27 might push for a longer delay until June 2020. This would ensure the UK is out of the EU by the time EU countries vote on the new seven-year EU budget. It also gives the UK the chance to decide whether to extend the transition period beyond December 2020 (this decision needs to be taken in July). 

A longer Brexit extension would come with conditions attached 

But a longer extension would come with its own set of conditions.

First, the UK would be required to appoint a British commissioner and a second judge to the European Court of Justice.

Second, it would need to continue to act in “sincere co-operation” – meaning it could not choose to frustrate EU work in other areas (this is particularly important given a new Commission is about to start later this year).

Third, it will need to continue to pay into the EU budget while it is still a member state – though this should not be contentious given that the UK is already required to pay into the budget during the transition period. The EU27 may decide to call another Brexit summit to discuss the terms with the UK and ensure the government’s buy-in. 

The EU27 could be creative with the terms of a Brexit extension

But the EU27 could also choose to be creative. Back in March, the UK and the EU agreed to extend Article 50 until either 22 May, subject to MPs approving the Withdrawal Agreement, or failing that until 12 April. There is nothing preventing the EU from being creative this time round too – a short technical extension of two weeks and then, if MPs fail to pass the Brexit deal or Withdrawal Agreement Bill, the UK could be granted a longer extension. 

The EU27 are growing tired of the Brexit process – but they have also wanted to avoid a no-deal Brexit or being blamed for one. Their preference would be for MPs to pass the deal and leave the EU before the end of the year – but they are bracing themselves for yet another, and possibly longer, delay. 

Comments

Before looking at step2, first concentrate on step1.
Does the Benn Act specify when exactly the prime minister must request the extension?
It can be understood that it is before October 31 / October 30, but nothing more.

"If MPs haven’t approved a deal in a meaningful vote, or approved leaving the EU without a deal by 19 October, then the prime minister must send a letter".
What does "then" mean according to the act?

Is it clear that EU could agree a longer extension than 3 months formally requested? Any extension has to be unanimous under A50, if it’s not requested by U.K. it isn’t unanimous. So 3 months may be the max, if any extension at all. It took ; mths to agree & hold referendum in 2016, it could maybe be done in 3 now.