Soon after Tuesday’s vote, the EU’s two top politicians in Brussels, Jean-Claude Juncker and Donald Tusk, voiced their regret over Parliament’s decision to reject the deal. The best offer is already on the table, they said, and there will be no further talks until the UK government clarifies how it intends to proceed. Meanwhile, they will step up their no deal preparations. However, member states are not (yet) ready to let the UK crash out with no deal. Behind closed doors, Commission officials are exploring options for extending the article 50 period.
Legally speaking, Article 50 of the Lisbon Treaty provides for an extension. The UK government would need to notify the EU and any extension would need the approval of all member states. The German Finance Minister Peter Altmaier suggested that the EU27 stood ready to resume talks if Theresa May did decide to return to Brussels. Other EU heads of government – from the French President to the Irish Taoiseach – have said they would also be open to further talks.
But not at any cost. Theresa May would need to convince the EU27 that an extension is a price worth paying – namely that the revisions she is seeking will be acceptable to the EU and help her get the deal over the line in Westminster.
Supposing Theresa May is successful in providing those assurances, and that the EU27 agree to an extension, the next step would be to determine the length of the extension. Much of this would depend on what was left to do – whether it was just ratification or renegotiation – and the EU’s willingness to continue talks beyond the European Parliament elections in May.
The EU27 would find it relatively easy to agree to an extension until May or until new members of Parliament take up their seats in July. This would give negotiators more time to revisit the deal, while EU ratification could be delayed until the summer.
Extending Article 50 beyond July poses two main problems.
The first concerns the configuration of the new European Parliament. In June 2018, the EU decided to reallocate some British seats between the EU27, and lists of candidates are being drawn up in different member states on the assumption that British MEPs will no longer be present. While it would be possible to postpone this reconfiguration until after the UK has left the EU, the UK government would need to notify member states as soon as possible – ideally before campaigns begin.
Second, it would be very difficult to see how the UK could continue to exercise its rights as a member state without its own elected representatives sitting in the European Parliament.
One way round this problem would be for the UK to ask current British MEPs to continue serving in the next European Parliament. The EU27 would write a one-page protocol and the new composition for the European Parliament would be postponed until after the UK has left. The European Parliament’s own legal service appear to suggest that this would be their preferred course of action.
Alternatively, the UK Government could appoint national representatives from the UK Parliament -- in the same way that Romania and Bulgaria did between 1 January 2007, when they joined the EU, until they held European Parliamentary elections later that year.
Realistically, both these options would only be tenable as a short-term fix as they would not give UK or EU citizens in the UK the right to vote, or indeed stand, in European Parliament elections -- unlike their counterparts in other member states. Any attempt to install MEPs without elections could even be subject to challenge in the EU courts.
But even then, the EU27 may be reluctant to carry on talks for much longer and risk undoing 18 months of negotiations. After all, the withdrawal agreement reflects months of lengthy, complex and painstaking negotiations. It is also the product of careful compromise on both sides (even if the PM’s detractors don’t always see it that way). For some in Brussels, reopening the deal could risk unravelling it altogether as some member states could use this opportunity to table their own set of amendments. For example, Spain could push for more on Gibraltar or France for better guarantees on future fishing rights.
In conclusion, the EU27 would be open to an extension - but not at any cost and probably only for a few months. And that extension would only be available to conclude a deal – not give the UK longer to prevaricate about its future.