Brexit and the harsh reality of any further Article 50 extension

Any further extension of the Article 50 period will be a political matter. Politicians will propose an extension, they may seek to impose conditions and decide its length, and they will agree an extension or otherwise. But there are also legal considerations, and these will shape what the politicians might offer and agree.

As always, the starting point is Article 50. Article 50(3) provides that:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

On the face of it, any extension can be for whatever period the European Council agrees unanimously. But it is not that simple.

First, any extension under Article 50 has to serve the purpose of the article, which is to provide for the arrangements when a member state leaves the EU. So unless the extension does this, it will be outside the legal power of the European Council to decide on one. If an extension were instead continued membership by other means, and no longer an arrangement for a member state’s departure, then the legal basis for it would disappear. An extension cannot be revocation in disguise.

This is not to say any court of competent jurisdiction would gainsay what the council unanimously decides. Instead, the provision gives a solid legal basis to any conditions the EU27 may wish to impose upon the UK before agreeing to an extension. As long as these conditions serve to ensure that the UK had concrete plans in place to continue with Brexit, then they would be fully in keeping with Article 50. There could also be conditions that the UK would not disrupt EU business. The UK will not legally be able to challenge any of these stipulations.

Second, any extension must be for a definite period. This is not quite the same as having a specific date, but it must be a termination date that is capable of being determined with certainty. It therefore cannot be forever (or “forever minus one day”, as once joked about in the US copyright extension debate). This is again because Article 50 provides for arrangements for departure, so there needs to be a certain date for when that takes place, even as a default. If a departure date cannot be reckoned then the purpose of Article 50 will have been frustrated.

There can, however, be a range of termination dates, with the applicable one being contingent on a thing happening or not happening. This is what has happened with the short extension already agreed. So, for example, there could be early termination in the event that the current withdrawal agreement is accepted by the UK. There can also be a provision for immediate termination on notice by the UK. The awful portmanteau of “flextension” is correct in its essence.

But perhaps the most important legal aspect of any extension period is that it is not an end in itself. The Brexit process can only have three ultimate outcomes: deal, no deal or revocation. Any extension has to be a means towards one of these outcomes

Any extension could therefore speedily force the issue this week of revocation or a no-deal, or it may provide the time and space for the UK to consider its position afresh and for the EU to be free for a while of the dramas and distractions of Brexit.

The EU27 is also within its rights not to agree to an extension at all, and there would be nothing that the UK could do about it.

Each of these potential outcomes is based on one brutal inescapable legal fact: the EU27 have the effective power to determine the length and the terms of any further extension to protect their own position in respect of the UK’s departure from the EU. And if Britain cannot accept what is offered, or if no extension is offered, then the UK government has no choice but to accept the only legal outcomes available: departure without a deal on April 12, rushed acceptance of the deal or straight revocation.

The writer is a contributing editor of the Financial Times