Article 50 of the Lisbon Treaty is the legal process for leaving the EU. It establishes the two-year negotiation period, after which the departing member state is no longer subject to the EU’s treaties.
The UK triggered Article 50 on 29 March 2017 which means the UK was due to leave the EU at 11:00pm on 29 March 2019.
On 21 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.
On 29 March MPs rejected the deal for the third time. On 5 April, Theresa May wrote to the President of the European Council Donald Tusk requesting an extension until 30 June.
The EU27 have now agreed two options:
- The first is to delay Brexit until 31 October (at the latest) but only on the condition that the UK participates in European Parliament elections in May and does not undermine the smooth running of the EU and its institutions.
- If the UK fails to hold European Parliament elections, the UK will need to leave the EU on 1 June.
If the UK and EU ratify the Withdrawal Agreement before 31 October, then the UK would leave the EU on the first day of the following month.
Article 50 allows for either side to request an extension, but it was the UK that, on 20 March, made the first formal request for an extension.
The extension required the unanimous agreement in the European Council, the grouping of all EU heads of state and government.
Ahead of the first extension, the House of Commons approved a government motion on 14 March which said that the Government would ask for an extension from the EU.
But since then, Parliament has asserted a greater role in the extension process. The EU Withdrawal (No. 5) Act, introduced by backbench MPs Yvette Cooper and Oliver Letwin on 8 April, required the Government to seek MPs’ approval of the second extension request – which it received on 9 April. Although the bill was amended in the Commons to ensure that the Prime Minister was free to agree any extension with the EU provided it went beyond 22 May.
The Government also needs to amend the exit date in UK law, which it can do under the EU Withdrawal Act 2018. The EU Withdrawal (No. 5) Act means that the UK Government does not need approval votes to make the legal change (or any future legal change) – a measure included to help speed up the extension process.
The EU27 have agreed two options for extending Article 50 at the special Brexit summit in April:
- Option 1: A delay to Brexit until 31 October (at the latest) – but only on the condition that the UK participates in European Parliament elections in May and does not undermine the smooth running of the EU and its institutions.
- Option 2: If the UK fails to hold European Parliament elections, the UK will need to leave the EU on 1 June.
The rationale for the two dates proposed by the EU is designed to ensure that if the UK does leave the EU with no deal, this would not interfere with the European Parliament election cycle.
An extension until October also ensures that the UK leaves the EU before the new EU Commission begins its work in the autumn.
Option 1: 31 May 2019
An extension until 31 May would avoid the need for the UK to hold European Parliament elections which are scheduled for 23–26 May. The UK would then have a choice between passing the Withdrawal Agreement or leave with no deal on 1 June.
Legally speaking, a cut-off date of 31 May is possible from the EU side. Although the European Parliament will no longer be sitting past April, it could still be recalled for ratification at any time until new MEPs take up their seats on 2 July. Politically however, the EU27 may not agree to ratifying the Withdrawal Agreement without a UK guarantee that both the Withdrawal Agreement and the Withdrawal Agreement Bill will get through the UK Parliament.
Option 2: 31 October 2019
The EU27 agreed to delay to Brexit until 31 October (at the latest) – but with conditions:
- The UK must participate in European Parliament elections in May. The Prime Minister also recognised this.
- The UK must respect the principle of “sincere cooperation”. This means the UK cannot obstruct or undermine EU institutions or discussions in other areas.
- There would be no renegotiation of the Withdrawal Agreement.
The EU27 also made clear that they would be open to changes to the Political Declaration if the UK changes its own red lines, for example, by seeking a closer arrangement with the EU Single Market and Customs Union.
If the UK and EU ratify the Withdrawal Agreement before 31 October, then the UK would leave the EU on the first day of the following month. The UK could also decide to leave the EU without a deal.
It is unclear whether another extension after October might be possible.
A longer extension until 31 October would require the UK to organise European Parliament elections in May.
However, if the UK and the EU ratify the Withdrawal Agreement before the new European Parliament sits for the first time on 2 July, then the 73 new UK MEPs would not take up their seats.
As was agreed in June 2018, the overall number of seats in the European Parliament would be reduced to 705 (down from 751) after Brexit. 27 out of the 73 seats would be reallocated to 14 member states.
On 10 April, the EU27 recognised that the UK would have the right to revoke Article 50 during the extension.
A number of senior politicians in the UK such as former Prime Minister John Major and Conservative MP Ken Clarke have suggested that the UK could buy more time by unilaterally revoking Article 50 – this might also be a way of avoiding demands from member states reluctant to grant an extension.
Until December 2017, it was not clear whether the UK could end the Article 50 process. However, the European Court of Justice (ECJ) has ruled that a member state could decide to revoke the Article 50 notification unilaterally.
However, the judgment made clear that the purpose of the extension should be to remain in the EU – not just to buy time. So revoking and then immediately retrigger Article 50 would not be possible. But it is hard to see how the ECJ could take action against a much more ambiguous revocation.