EU agrees new, flexible extension to Brexit date

The deal in outline

In the early hours of 11 April, the European Council reached an agreement to offer a second, more flexible, extension to the expiry date of the UK’s Article 50 notice. The UK accepted the offer to avoid leaving without a deal on 12 April, although it had asked for a shorter extension to 30 June.

If the EU withdrawal agreement is ratified by 31 October, the UK will leave the EU and the agreed transitional period will start on the first day of the month after the ratification process has been completed, or 1 November, whichever is the earlier. Otherwise, the UK will leave the EU on 31 October without a withdrawal deal.

There are two important conditions attached to the agreed extension:

• If the withdrawal agreement is not ratified by 22 May, the UK must take part in the EU Parliamentary Elections, otherwise it will leave the EU without a deal on 31 May.
• The withdrawal agreement cannot be re-opened during the period of the extension, though the EU has said it is open to changing the accompanying political declaration.

There is also one important point of clarification: the Council decision explicitly states that the UK retains the right to revoke its Article 50 notice throughout the agreed extension period.

Why 31 October?

It has been widely reported that many EU states were in favour of a longer extension period, but President Macron of France pushed hard for the shortest possible period. In the end agreement was reached on a period of just under six months as a compromise between these two positions.

The precise date was chosen because it falls at the end of the current EU commissioners’ five year term of appointment. That means that if the UK leaves the EU by that date there will be no need to appoint a new UK commissioner to replace Julian King, who is due to leave his post on 31 October.

What is happening about elections to the EU Parliament?

Theresa May made it clear in her statement to the Commons on 11 April that she is keen to avoid having to hold the EU Parliamentary Elections. However, the terms of the extension mean that they will have to go ahead unless the withdrawal agreement can be ratified prior to 22 May, the day before the elections are due to take place in the UK.

The Government has already set the election process in motion by laying an order appointing 23 May as the polling day.

What does the extension mean in practice?

One senior researcher at the Institute for Government has said that the EU Council’s decision amounts to an agreement to “kick the battered Brexit can a little further down the road”. Views will differ about how much, if any, progress the UK has made towards resolving the Brexit impasse since negotiations on the EU Withdrawal Agreement concluded last year. However, it is certainly true that while the threat of a no-deal Brexit has receded, it has not been eliminated.

The Government’s next objective will be to see whether the withdrawal agreement can muster enough votes to get through the Commons by 22 May in order to avoid going ahead with the EU Parliamentary Elections. This could be done by reaching an agreement with Labour, or by assembling a cross-party coalition in the House of Commons. In either case that it likely to involve changing the Government’s policy on the UK’s future relationship with the EU, which currently rules out staying in the single market or any kind of customs union with the EU.

If that deadline is missed, there is time for more radical steps to resolve the impasse, including the possibility of a general election or a second referendum (though a decision on the latter would need to be taken in the next few weeks to allow enough time for it to be held by 31 October).

While the Government’s next steps are uncertain, we can say with confidence that avoiding a no deal Brexit prior to 31 October is now entirely in the Government’s hands. Given the hurried passing of the EU Withdrawal Act 2019 (a private member’s bill promoted by Labour MP Yvette Cooper, which in effect forced the UK Government to seek the latest extension) it seems very unlikely that any prime minister will be in a position to trigger a no-deal Brexit by failing to hold the EU Parliamentary Elections.

For these reasons the urgency has gone out of no-deal preparations on both sides of the Channel, and the Government is being asked to clarify what this latest extension means for its no-deal strategy. Organisations preparing for Brexit have been granted a valuable breathing space, but it would be premature to shelve those no deal contingency plans completely.