The European Council Shrewdly Grants the UK a Short, Conditional Brexit Extension
Ian Cooper (DCU Brexit Institute)
Last night in Brussels, the leaders of the EU-27 made a cool, rational decision regarding the UK’s request for an extension of the Article 50 period. Theresa May had requested an extension of just over three months, to June 30. It had been suggested that the EU might insist on a much longer extension of nine months or more. Instead, the European Council went in the other direction, offering the UK a choice between: a very short extension (until May 22), conditional on the House of Commons ratifying the Withdrawal Agreement next week; or if that fails, a very, very short extension (until April 12), in which time the UK would be expected to indicate a way forward.
This is a nuanced and carefully calibrated decision. The European Council’s aim is, above all, to protect the interests of the remaining EU-27 and keep its own options open, while maintaining the onus on London to determine the final outcome of the Brexit process. If the European Council had insisted on a long extension, it would have been accused of trying to keep the UK trapped in the EU and of forcing it to take part in European Parliament elections on May 23-26. A long extension could still be granted before April 12, but the blame for this move would rest on the UK’s failure to ratify the Withdrawal Agreement.
The decision that the UK must be gone by May 22 (with a ratified Withdrawal Agreement) is designed to protect the democratic integrity of the European Parliament elections. This could have been called into question if the UK were still a member state – albeit on the way out – during the period after EP elections take place but before the first meeting of the new parliament on July 2. The decision also establishes that any decision about a longer extension must be made by April 12, which would in that case leave enough time to organize EP elections in the UK. This would again safeguard the democratic legitimacy of the new parliament, however awkward it would be for some of the political parties in the UK.
The shrewdness of the European Council’s decision was not a foregone conclusion. The European Council defines the EU’s overall political direction. It can be a somewhat cumbersome, hydra-headed decision-making body, made up of all the heads of state and government of the EU-27, in addition to the (non-voting) presidents of the European Council and the European Commission.
The power to decide on an extension is formally given to the European Council under Article 50, and the decision must be unanimous. This is in contrast to the ratification of the Withdrawal Agreement, which must be done by a majority vote in the European Parliament and a super-qualified majority in the Council. The European Council also set the negotiating guidelines and gave its approval to the Withdrawal Agreement and the Political Declaration.
Prior to the meeting, it was unknown how the European Council would handle the extension request. While various individual leaders had given their opinion on the matter, the question had reportedly never been collectively discussed at the level of heads of state and government. There was no precedent for this situation, and no existing template for what form the decision should take.
The fact that it is the European Council who decides whether to extend underlines the purely political nature of the decision. Much of the Brexit process has been of a quasi-technocratic character, and the European Council has been content to leave the negotiations in the capable hands of Michel Barnier and his team. By contrast, this decision was made on a frankly political basis, based on the leaders’ calculation of the collective interest of the EU-27.
The unanimous character of the decision left open the possibility that any member state could have vetoed it. Any national leader could have used the threat of an imminent no-deal crash-out – the moment of maximum leverage – to extract some kind of concession from the UK, or even from his or her EU partners on a matter unrelated to Brexit. It was rumoured that some British Brexiteers were lobbying Eurosceptics in other member states, such as Poland or Italy, to veto the extension and thus prompt their preferred outcome, a no-deal Brexit. In the end, no such mischief attended the decision.
In stark contrast to the ongoing chaos and deadlock in Westminster, the leaders in Brussels were decisive. Normally, the European Council conclusions would be already drafted by officials in advance, and then given to the leaders for their approval. In this case, the leaders had to make a decision in real time, and they deliberated for five hours. Eventually, they arrived at the creative solution of a two-tiered conditional extension.
The consequences of the decision are hard to predict, because it still leaves open all possible outcomes – including a Brexit under the terms of the withdrawal agreement by May 22, a no-deal Brexit on April 12, or a longer extension to allow for other scenarios to play out, such as a further negotiations, or a general election or another referendum in the UK.
For romantic Remainers who still hope that Brexit could be reversed, a long extension without conditions probably would have been preferable. But this short, conditional extension implies the leaders of the EU-27 are coming to the realization that an orderly Brexit in the short term is their preferred outcome. If that seems to be a rather cold conclusion – well, that’s politics.
Ian Cooper (@IanCooperEU) is a Research Fellow at the DCU Brexit Institute.