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Brexit vote: How can Article 50 be extended? Brexit vote: How can Article 50 be extended?
(30 days later)
As you've probably noticed by now, time is running short for Theresa May to finalise a Brexit deal. Time and time again, the prime minister has insisted the UK will leave the EU on schedule.
So how easy would it be to delay the process? But now Theresa May has had to concede that if she fails to have her Brexit deal approved in Parliament, and if Parliament then votes against the idea of leaving the EU with no deal, MPs will have a vote (on 14 March) on delaying the whole process.
First of all, it would mean extending the Article 50 negotiating period. How easy would that be?
First of all, it means extending the Article 50 negotiating period.
When people talk about Article 50, they are referring to Article 50 of the EU's Lisbon Treaty - the section that sets out what happens when a country decides it wants to leave the European Union.When people talk about Article 50, they are referring to Article 50 of the EU's Lisbon Treaty - the section that sets out what happens when a country decides it wants to leave the European Union.
Most importantly, Article 50 allows a two-year period for negotiations on divorce - finalising a withdrawal agreement and drawing up the broad outlines of a future relationship. Most importantly, Article 50 allows a two-year period for negotiations on a divorce - finalising a withdrawal agreement and drawing up the broad outlines of a future relationship.
The UK triggered Article 50 on 29 March 2017. So, unless something changes, the UK will leave the EU on 29 March 2019 - in exactly two months' time. The UK triggered Article 50 on 29 March 2017. So, unless something changes, the UK will leave the EU on 29 March this year.
That's why you keep hearing people talk about the clock ticking.That's why you keep hearing people talk about the clock ticking.
The default position in law at the moment is that - deal or no deal - 29 March is when Brexit will happen, whether the UK is ready or not.The default position in law at the moment is that - deal or no deal - 29 March is when Brexit will happen, whether the UK is ready or not.
That could be changed by withdrawing or revoking Article 50 altogether. The UK can do that without consulting anyone else. It would mean Brexit would not happen and the UK would remain in the EU. That could be changed by withdrawing or revoking Article 50 altogether. The UK can do that without consulting anyone else. It would mean Brexit would not happen and the UK would remain in the EU. But revoking Article 50 is something Theresa May has said she will never do.
The other alternative is to extend the Article 50 period, allowing more time to finalise a deal, or perhaps come up with an alternative outcome via an election or another referendum. It's also worth pointing out that the European Court of Justice (ECJ) has ruled that a revocation should be "unequivocal and unconditional", suggesting that the ECJ would take a dim view of any attempt to withdraw an Article 50 notification and then resubmit it again later.
Extending Article 50
The other option is to extend the Article 50 period, allowing more time to finalise a deal, or perhaps come up with an alternative outcome via an election or another referendum.
But extending Article 50 isn't something the UK can do alone, even if Parliament were to vote in favour and force the government to act.But extending Article 50 isn't something the UK can do alone, even if Parliament were to vote in favour and force the government to act.
The UK would need to go to Brussels to get the unanimous agreement of all 27 other EU countries and they would want to know why the request was being made. The UK would need to go to Brussels to get the unanimous agreement of all 27 other EU countries.
If it was just to allow time for even more argument, they might not be impressed. There is an EU leaders' summit scheduled for 21-22 March, during which a formal request for an extension could be made and approved.
It's also possible in theory that a decision could be made even later, perhaps at ministerial or ambassadorial level, as long as it took place by 29 March.
"First the request must be made," said a spokeswoman for the European Commission, "and then it is a decision of unanimity from all member states.
"There are a number of avenues for making decisions and it is not specified in Article 50 how the decision should be made."
Political decision
On a political level, though, an Article 50 extension would need to approved at the highest level.
Other EU leaders would want to know why the UK was asking for an extension.
If it was just to allow time for even more argument in Westminster, they might not be impressed.
So, the UK would need to have a pretty clear plan.So, the UK would need to have a pretty clear plan.
If a short extension were needed for a few weeks to make sure any last-minute deal gets turned into law in the right way, that would almost certainly get the green light. If a short extension were needed for a few weeks - to make sure any last-minute deal gets turned into law in the right way - that would almost certainly get the green light.
Otherwise, the EU could get the blame for a no-deal Brexit.Otherwise, the EU could get the blame for a no-deal Brexit.
Even a three-month extension, until the end of June, shouldn't be too complicated. There are European elections in May but the new parliament doesn't sit for the first time until the first week of July.Even a three-month extension, until the end of June, shouldn't be too complicated. There are European elections in May but the new parliament doesn't sit for the first time until the first week of July.
That means the outgoing parliament, including UK MEPs, could be asked to sit in special session if it were needed to ratify a Brexit deal. That means the outgoing parliament, including UK members of the European Parliament (MEPs), could be asked to sit in special session if it were needed to ratify a Brexit deal.
There is nothing in Article 50 itself that says a member state can't ask for more than one extension but any attempt to have a series of extensions could be subject to legal challenge at the European Court of Justice and would raise awkward political issues. Longer extension
In fact, any extension for longer than three months, while possible in theory, gets into much more tricky legal and political territory. But any extension for longer than three months, while possible in theory, gets into much more tricky legal and political territory.
It would raise a number of questions: The government says it has no intention of taking part in May's elections, even if Brexit hasn't happened by then. So the UK would have no MEPs in the new European Parliament even though it was still a member state.
This is - once again - uncharted territory. A confidential report by the parliament's legal service, which has been seen by BBC News, says that would mean the UK was in breach of its legal obligation to hold elections.
But all the arguments surrounding the idea of extending Article 50 are being discussed more and more openly as the clock ticks toward 29 March. The report argues that the absence of UK MEPs would not render the new parliament invalid.
But it could become the focus of all kinds of legal challenge, not least on the basis that there should be "no taxation without representation".
Other countries could well insist that part of the price of a longer Article 50 extension would be the UK agreeing to take part in the European elections.
Or perhaps existing MEPs could be asked to stay on for a temporary period.
"In the event of a longer extension, there is going to have to be some form of UK representation," said Catherine Barnard, professor of EU law at the University of Cambridge.
But this is - once again - uncharted territory.
There is likely to be heated debate in London and in Brussels about the proposed length of any extension.
Both supporters and opponents of Brexit see any delay as a possible route towards another referendum.
And all the disputes surrounding the idea of extending Article 50 are being aired more openly as the clock ticks toward 29 March.
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