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Brexit vote: How can Article 50 be extended? Brexit: How can Article 50 be extended?
(14 days later)
Time and time again, the prime minister has insisted the UK will leave the EU on schedule. MPs are due to vote on Thursday on whether to delay Brexit by extending Article 50. How would the process work?
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. Article 50 is part of the EU's Lisbon Treaty - the section sets out what happens when a country decides that it wants to leave the European Union.
How easy would that be? It allows a two-year period for negotiations on a divorce - finalising a withdrawal agreement and drawing up the broad outlines of a future relationship.
First of all, it means extending the Article 50 negotiating period. The UK triggered Article 50 on 29 March 2017, which means that it is set to leave the EU on 29 March this year. 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.
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. The UK makes a request
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. One way around this would be for the UK to ask for Article 50 to be extended to allow more time to finalise a deal, or perhaps come up with an alternative outcome via an election or another referendum.
The UK triggered Article 50 on 29 March 2017. So, unless something changes, the UK will leave the EU on 29 March this year. But it is not something the UK can do alone, even if Parliament were to vote in favour of an extension and force the government to act.
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.
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.
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.
The UK would need to go to Brussels to get the unanimous agreement of all 27 other EU countries.The UK would need to go to Brussels to get the unanimous agreement of all 27 other EU countries.
There is an EU leaders' summit scheduled for 21-22 March, during which a formal request for an extension could be made and approved. There is an EU leaders' summit scheduled for 21 to 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. It is 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."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.""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 The EU's decision
On a political level, though, an Article 50 extension would need to approved at the highest level. But the EU is not obliged to say yes. Other EU leaders would want to know why the UK was asking for an extension.
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 at Westminster, they might not be impressed.
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. The EU's chief negotiator Michel Barnier told the European Parliament: "It is the responsibility of the United Kingdom. They have to tell us what it is they want for our future relations, what will their choice be? That is the question that has to be answered before a decision on a possible further extension."
Otherwise, the EU could get the blame for a no-deal Brexit. If a short extension was 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.
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, should not be too complicated. There are European elections in May, but the new parliament does not sit for the first time until the first week of July.
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. That means that the outgoing parliament, including UK members of the European Parliament (MEPs), could be asked to sit in special session if it was needed to ratify a Brexit deal.
Longer extension A longer extension
But 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.
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. The UK government says that it has no intention of taking part in May's European elections, even if Brexit has not happened by then, so the UK would have no MEPs in the new European Parliament, even though it would still be a member state.
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.
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.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.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. Revoking Article 50
But this is - once again - uncharted territory. Article 50 can also be withdrawn or revoked. The UK can do that without consulting anyone else. It would mean that Brexit would not happen and the UK would remain in the EU. But Prime Minister Theresa May has said that should not happen.
There is likely to be heated debate in London and in Brussels about the proposed length of any extension. 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.
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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