Henry Newman is Director of Open Europe.
If all Conservative MPs had voted with the Government last Friday, Brexit would have been secured. Instead, power has been handed to Brussels, with the EU deciding what comes next. At the European Council meeting on 22nd March, EU leaders agreed that the UK could have an extension of Article 50 until May 22nd, but only if the Commons passed the Withdrawal Agreement last week. That didn’t happen. So the new default is a No Deal exit on April 12th – unless a further extension is secured.
After Friday’s vote, Donald Tusk announced that EU leaders will meet for an emergency session on April 10th. Having spent months maintaining that the EU wasn’t really focused on Brexit, there’s now a special summit just to decide what to do next. Although we can guess what might happen, no one actually knows what the 27 leaders will do in conclave. Will they agree an extension? If so, for how long and on what conditions? Every country has to agree to any extension – so Lithuania, say, could, in theory, determine the path of Brexit.
The UK will also have to accept any extension. The Prime Minister might refuse to agree a long extension, as she has previously hinted. But Parliament, under Oliver Letwin’s direction, will surely attempt to instruct her to do otherwise. And several key Cabinet figures, including the Lord Chancellor, have made clear that they would leave the Government if it sought to pursue No Deal. On the other hand, she could face a Cabinet revolt if she agrees a long extension.
There are three broad options from the EU’s point of view: first, refuse any extension beyond that already granted, i.e: 12th April – this would probably force a No Deal.
Second, allow only a short extension until, say, 22nd May while ruling out further extension.
Third, offer a long extension, with various possible conditions.
The EU is unlikely to go for the first option which could see it ‘blamed’ for No Deal – something Brussels is determined to avoid. The second option would leave the UK little time to ratify a deal, but would create serious pressure for Parliament actually to make some decisions. Because the UK would not have made full preparations for European elections, extension beyond June would be very difficult. The third option would almost certainly mean European elections in the UK.
On Sunday’s Sophy Ridge programme, the Shadow Foreign Secretary suggested that these could be avoided. But the requirement for members to hold European Parliament elections is there in black and white in the Lisbon Treaty. The European Commission, which sees itself as the guardian of the EU treaties, is not flexible on this point.
Camilla Cavendish, the former Downing Street policy chief under David Cameron, argued recently that accession countries such as Bulgaria were able to appoint MEPs and this precedent could be used by the UK. That is technically true, although Bulgarian MEPs were only appointed for a few months until by-elections could be held. However, those states had an accession treaty which provided a treaty-level vehicle for a legal derogation from the existing EU treaty provisions on elections. The UK does not.
The EU chose the deadline of April 12th because that date marks the point at which domestic preparations must be made for European elections. Any long extension beyond then will almost certainly require the UK to start preparing to hold these elections. The UK can make whatever legal or political arguments it likes against holding European elections, but that misses the point. It is the leaders of the EU27 who will determine the conditions of any extension, not the UK.
The EU’s position on extending Article 50 has evolved. Friday March 29th used to be an almost immutable date, only to be bent if a second referendum seemed likely. Then the prospect of a technical extension emerged, to allow the UK to complete ratification, only on the condition that the deal had already been approved by the Commons. But ten days ago, the EU agreed to a different sort of delay – a “flextension” before the UK had signed off the deal. The European Council hoped that the looming deadline would force a decision…but it didn’t.
Some reports suggest that the mood on the continent is shifting further. Although there is scant enthusiasm for a No Deal, an exasperated sense is growing in different EU capitals that Parliament may be simply incapable of agreeing to anything. My European contacts tend to wrap together the Speaker’s interventions blocking the Government, the repeated failures of the Meaningful Votes, and the confusion over indicative votes conflating them all into one big bundle, labelled ‘UK chaos’. Whether this is a fair diagnosis of the political position is irrelevant – some of the EU sees things like this and is determined to insulate itself from being ‘infected’ by the British troubles. EU states are also determined to avoid the UK requesting rolling extensions every few weeks.
European leaders will be looking to the upcoming European elections, scheduled for late May. These will be an especially important test for Emmanuel Macron, whose project for European reform has stalled, as he has become mired in domestic trouble. Before last month’s European summit, he was threatening to push the UK out without a deal. He was talked around by Angela Merkel, who felt it was wrong for the EU to force the UK’s hand. Macron’s tough talk may be a show – it’s not clear that he would actually want to press a No Deal, which would be damaging for France including the Pas-de-Calais, just before May’s elections. But the threat cannot be discounted.
Overall, it’s unclear how the dynamic will work next week. May will be asked to present a plan for how to take things forward, but European leaders have previously found her presentations lacking, to put it mildly. Might the EU make a general election or a new referendum a condition of any extension? Perhaps, although that would seem to be interference in domestic politics. The EU could demand a softer Brexit is reflected in an updated political declaration, but that’s difficult when Parliament has so far refused to coalesce around one, as last night’s debacle over the second indicative votes showed.
Might there be some last-minute movement on the backstop? This would be a logical thing to do (after all, adding some clearer exit from the backstop would almost certainly allow the deal to pass the Commons). But UK negotiators are holding out little hope, despite Merkel’s recent insistence that alternatives can be found.
There is now no single EU view about what to do next. There are concerns that a long extension could mean the UK using its veto over new budget negotiations to leverage further concessions. Some argue that the uncertainty must end, the boil should be lanced, the plaster ripped off. Others fear the disruption of No Deal, especially with some parts of the Eurozone slowing down again and Ireland heavily exposed. Now more than ever, as a result of the refusal by MPs to back the Withdrawal Agreement, it’s Brussels and not the Government which is in the driving seat, and we don’t know which way they will turn.